Prior to 1893 the overseers of the poor of Nashua were elected by the people (Laws 1878, c. 165, s. 2); but in that year it was enacted that "the board of mayor and aldermen of said city, on the first day of January, 1894, and annually thereafter, shall elect by ballot and by major vote one person to be overseer of the poor." Laws 1893, c. 285, s. 5. The Public Statutes (c. 47, s. 7) provide that the mayor "shall have a negative upon the action of the aldermen in laying out highways and in all other matters; and no vote can be passed or appointment made by the board of aldermen over his veto unless by a vote of two thirds at least of all the aldermen elected." If this language is given its ordinary meaning, the mayor cannot vote for an overseer of the poor, but can veto an election to that office by the aldermen; for ordinarily when "the board of mayor and aldermen" is spoken of, two independent bodies are intended, each having a negative on the action of the other, and there is nothing in this case, as there was in Cate v. Martin, 70 N.H. 135, to show that the legislature intended this section should not apply.
Since the mayor could not legally vote for the defendant, the vote taken shows that the relator was the choice of the aldermen. He, however, was not elected when this proceeding was brought, because to an election the express, or at least the implied, assent of the mayor is essential.
Petition, dismissed.
All concurred. *Page 543