The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1902-04-18

the board of aldermen and shall not
be entitled to vote except in the case
OF a tie In the event OF the inability.
refusal or failure Of the said board to
elect n mayor at its first meeting, 1t
snail be the DUTY of said board to
select one of their own number to act
as such temporarily until 4 mayor
shall be duly elected"
The second section OF the said act
reads as follows: That Sec. 6 CT the acts
of 1874 and 5 be. and the same is here
by repealed" AND this repeating clause
repealed the provision OF the act of
1874. which reads:
That at the first meeting Of each
and every Board of Aldermen elected
under the provisions OF this act, they
shall proceed to elect one OF their own
number TO discharge the duties now
prescribed by law for the mayor OF
said city during the term of office OF
said board OF aldermen"
Again, n charter was amended by
chapter 21S laws 1899, section 3, which
provides as follows:
mo member of the board OF alder
men shall be eligible to the office of
mayor or other city office or employ
ment, until the expiration OF the term
for which such aldermen may have
been elected or appointed"
1t will be seen from the provisions
Of the several acts that previous to the
passage of the act of 1891, the mayor
elected by the board yet remained a
member of the board, and previous 10
that time the custom seems to have
been observed OF his being appointed
like other aldermen upon committees
in the discretion CT the board
The law of 1891 prohibits his re-
naming after his election, If at the
time of his election an alderman, in
hat position.
The conclusion is very clear 20 my
mind under the acts constituting the
charter of this city: First, That the
corporate powers of the city are vested
in the aldermen, not the mayor. Sec
ond, The duties or rights conferred up
on the mayor, which the board OF
aldermen may not take from him. are
those that declare: He shall keep the
seal of the corporation" and when
present, shall preside at all meetings
of the board Of aldermen, and,
there is an equal division upon any
question, or in the location of officers
by the board, ne shall determine the
matter by his vote" All other duties
which he is required to perform are
such as are incident or attached to
his office by virtue Of any law or Or
dinance of said city, n such other
duties as, from time to time, shall be
prescribed by the board of aldermen.
1IITu, AS UO law pIONlutS loI us dp-
pointment Of committees, he has no
authority to appoint such committees
or to appoint himself a member there
of, except at the will of the aldermen.
Even if the law did not vest this
power in the aldermen as incident to
their office as being the supreme gov
erning power of the city, the general
custom of legisla tive bodies would still
leave it entirely in the province of the
nllnrponn tn 1rtnrnainn whnthnr fh.
board or the mayor should appoint
committees.
Mr.. Cushing, in his work on the
Law and Practice of Legislative As
seblies,' section 291, declares that THE
duties of the presiding officer Of d
legislative assembly are manifold and
various, corresponding in some sort
with the different functions in which
the assembly may be engaged. In its
ordinary capacity of a legislative body.
his duties are < = To name the men,
bers (when this is made by rule a part
of his duty who are to serve on COM
mittees
The power OF the speaker of the
house of representatives and the pres
lent of the senate to appoint CO"
tees rests entirely upon the rules adopt
ed either by congress or the senate for
the government of the respective
bodies.
Further answering your inquiry, l
would state that the mayor has the
right to refuse to put a motion maua
by an alderman at a meeting of the
board only when as a presiding officer
he may rule that such motion is out of
order. But an appeal from his opinion
upon a ruling Of this character under
the parliamentary practice can be APP
pealed from the board, and if appealed,
the mayor has no right to refuse TO
submit the appeal.
AS there is no law or ordinance pre-
scribing the appointment of commit
tees, the simplest way Of carrying out
the wish of the aldermen is to adopt
an ordinance or rule prescribing the
standing committees, the number OF
| members of which each committee
shall consist, and declaring as the
board may elec- whether they shall be
appointed by the board or by the
mayor.
Rrespectfully submitted,
IREDELL MEARES.
Alderman Harriss said he understood
that City Attorney VIM. J.. Bellamy,
who was present, was prepared at the
last meeting to render an opinion on
this matter, and he would like to hear
from him. Alderman Harriss said, nc
| doubt, the city attorney had inquired
into the legal status Of the appoint
ment of the committees, and the board
would like to near from him..
City Attorney Bellamy then gave the
following opinion off handed:
CITY ATTORNEYS OPINION.
You have asked my opinion as to the
legal status of The mayor and board OF
aldermen with reference to the ap'
pointment of committees. The only
way a municipal corporation can act
is through the instrumentality o.
agents, officers or committees. and IL
the absence of any direct provision o.
the charter stating the manner anc
method which nould be pursued in TIT
appointment and creation of agents
officers and committees there is an In
herent right vested in the board itsei
70 select and appoint any n all by {
majority vote. After a diligent search
Of the laws of North Carolina and par
ticularly the charter of the City o
Wilmington, / find no provision which
regulates the of appointing o.
selecting committees So, therefore,
lake it. as a matter Of general law, IL
the absence of any statutory provis
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