City of Princeton v. Woodruff

DISSENTING OPINION

Draper, J.

The city of Princeton is one of the 64 cities of the fifth class in the State of Indiana. In the November, 1951, election a mayor and five councilmen were chosen. The mayor is of one political persuasion and the councilmen another. They all took office January 1, 1952. The council promptly passed the resolutions mentioned in the majority opinion. The mayor attempted to appoint a city attorney, a board of public works and safety, and other officials. This litigation ensued.

I agree that the mayor has the right to appoint a city attorney. Perhaps the most important question that remains to be decided is whether he has the right to appoint the board of public works and safety. The majority holds he does not have that right. I think he does.

Acts 1933, ch. 233, §8, Burns’ 1933, §48-1219, provides in part as follows:

“The duties of the board of public works and'of the board of public safety as now provided by law shall be performed by a board to be known as the “Board of public works and safety,” which shall be *553composed of the mayor, the city attorney, and a member, of the common council to be selected by the mayor.”

By Acts of 1949, ch. 26, §1, Burns’ 1950 Replacement, §48-1219, the Act was amended, with regard to the composition of the board of public works and safety, .to read as follows:

“The duties of the board of public works and of the board of public safety as now provided by law shall be performed by a board to be known as the ‘Board of public works and safety,’ which shall be composed either of the mayor, the city attorney, and a member of the common council to be selected by the mayor, or of the mayor and two members of the common council to be selected by the mayor.”

It will be noted that before the amendment the board of public works and safety was composed of the mayor, the city attorney and one member of the common council to be selected by the mayor. Under the section as amended the board of public works and safety is to be composed either of the mayor, the city attorney and a member of the common council to be selected by the mayor, or of the mayor and two members of the common council to be selected by the mayor. In the law as originally written the selection of those who would serve with the mayor was left entirely to the mayor. The amendment made no change in that respect. It simply gave the mayor a broader discretion in the matter of selection.

. The first rule of statutory construction is, of course, -to determine and give effect to the legislative intent. It seems to me the legislative intent was to broaden the mayor’s range of choice, to increase the field of eligibility. Nothing in the Act indicates to me an intention to permit the city council to limit or control the mayor’s *554right to select the other members of the board. To the extent that the council seeks to limit the field from which the mayor may choose the membership of the board, I think they seek to usurp the power of selection and arrogate to themselves an unmerited function. I cannot find in the fact that the legislature saw fit to broaden the field of choice, an intent or purpose to permit the council or anyone else to restrict it.

A city, council cannot lawfully forbid what the legislature has expressly authorized. The council does not have the power to veto legislative enactments. Yet the court says, in effect, it can do so. Before the 1949 amendment the mayor could select one councilman to serve with himself and the city attorney. By the 1949 amendment he could, instead, select two councilmen to serve with him. By resolution the city council said he must choose two councilmen. If, instead, they had elected to say he must choose one councilman to serve with the city attorney, would not the effect be to veto the 1949 amendment?

Available data seems to confirm my conclusion concerning the legislative intent. The House Bill Digest dated January 29, 1949, recites that:

“This Bill amends Section 8 of an Act concerning certain civil cities and the provisions of the amendment make it possible that mayors of cities of the fifth class may appoint a member of the Common Council, in lieu of the City Attorney for which the Act now provides.”

The Indiana Municipal League issued the following bulletin concerning this legislation on February 9, 1949:

*555“TO—MAYORS, COUNCILMEN, CLERK-TREASURERS AND CITY ATTORNEYS OF FOURTH AND FIFTH CLASS CITIES
“RE:......
“HOUSE BILL 31—CITIES OF FIFTH CLASS MAY APPOINT SECOND COUNCIL MEMBER ON BOARD OF PUBLIC WORKS, IN LIEU OF CITY ATTORNEY.
(Affects Fifth Class Cities only) a
“H.B. 31 affects only fifth class cities. Copy of bill is not enclosed because it changes only eighteen words of the Acts of 1933.
“This H.B. 31 amends the Acts of 1933, p. 1042; Burns 48-1219, to read that in cities of the fifth class the Board of Public Works and Safety ‘shall be composed either of the mayor, the city attorney, and a member of the common council to be selected by the mayor, or of the mayor and two members of the common council to be selected by the mayor.’
“This bill passed the House January 31 by a vote of 91-1. It is now in Senate CITIES AND TOWNS COMMITTEE composed of the Senators above listed.
“H.B. 31 appears to be a good bill. It is only permissive legislation. The proposed change is not mandatory. It may possibly fit the needs of your particular city.
“Sincerely,
“W. Vincent Youkey (Sgd.)
“W. Vincent Youkey
“Executive Secretary”

I have no quarrel with the proposition, as announced in Scott v. City of Laporte (1904), 162 Ind. 34, 68 N. E. 278, 69 N. E. 675, that “If there are two ways of attaining an authorized municipal end, and both of such ways are proper, the governing body has a choice as to which of such means it will select; . . .” However, *556it seems wholly irrelevant to the problem presented. In the first place, I do not believe the organization of a board of public works and safety is a “municipal end.” It could at most be a “means to an end.” I think if the legislature gave a city the right to acquire a public parking lot by lease or purchase, the council could determine whether the city should lease or purchase. If the legislature gave a city the right to buy or build an electric light plant, the city council could decide whether to buy or build. It could choose either of the alternative methods to accomplish the purpose. But here there is no choice of methods. Only one method is provided. That method is selection by the mayor.

If the statute defined the board and provided that it might be selected either by the mayor or the council I would think the council could determine which authority should do so, but the statute does not so provide. It gives the mayor, and only the mayor, the right to designate those who shall serve with him on the board, and leaves it to his discretion whether he shall choose two council members, or one council member to serve with the city attorney and himself. It seems to me that the construction agreed upon by the majority is somewhat narrow and unrealistic, and quite likely to increase the difficulties under which mayors of fifth class cities labor.

Jasper, J., concurs.

NOTE.—Reported in 104 N. E. 2d 748.