I find myself unable to agree with the majority and therefore respectfully dissent.
The problem which confronts us is the construction of certain statutes which have not been passed upon before by this court and upon which there is not a great deal of authority in other jurisdictions.
The majority quote the case of State v. Noth, 173 Iowa 1, at page 3, 151 N.W. 822, 152 N.W. 639, but in my judgment that case is not in point and is of no help in solving the question before us for the court in that case said:
"Whether the mayor shall vote or not is entirely immaterial *Page 374 in determining the number requisite to election; and for this reason, the section of the special charter of the city saying, `The mayor shall have the casting vote and no other', is not pertinent, and whether he might properly have voted is not involved."
The material part of section 5717 of the 1935 Code reads as follows:
"No resolution or ordinance for any of the purposes hereinafter set forth, except as specifically provided by law, shall be adopted without a concurrence of a majority of the whole number of members elected to the council, by call of the yeas and nays which shall be recorded."
The material part of section 5639 of the 1935 Code is as follows:
"5. Presiding officer — vote. He shall be the presiding officer of the council with the right to vote only in case of a tie."
In the case at bar there was a tie — two voted for and two against. The mayor then voted to break the tie. The question is, Did he have a right to vote? The majority opinion holds that he did not.
It must be noted that there is no limitation placed upon the right of the mayor to vote in case of a tie. Nowhere in the statute is it provided that he may vote in certain cases and not in others. The provision is simply that "if there is a tie he has a right to vote."
In the case of State ex rel. O'Hern v. Loud, 92 Mont. 307,14 P.2d 432, a very similar question was before the Supreme Court of the State of Montana. In that case the question had to do with the confirmation of an appointment to the position of city attorney by the mayor, which seems to me to go just a little further than the case at bar. There was a tie. Did the mayor have a right to cast his vote to confirm the appointment that he himself had made? The court, 92 Mont. 307, 14 P.2d 432, at page 433, said:
"The relations of the mayor towards the body of the council, the board of aldermen are controlled by law. He has certain duties, rights, and powers granted to him of an executive nature, yet he presides over and is a constituent part of the whole *Page 375 council exercising its legislative powers, but withal he has no right to vote except where the body over which he presides, the board of aldermen, tie in a vote or proceeding. * * * A nomination to an office which requires confirmation by the members of the council, before becoming effective, necessarily demands a vote of the members constituting the city council who can vote. But, inasmuch as the mayor cannot vote unless there is a tie, the right to vote is necessarily restricted to the aldermen until that condition arises, when, by reason of a tie vote, the mayor may exercise his power, and confirm or reject."
And a little later in the same opinion, 92 Mont. 307,14 P.2d 432, at page 434, that court said:
"If the words `a majority of the whole number of the members elected is requisite to appoint or elect an officer' where unrestricted by any other provision, still there is found respectable authority to the effect that, when there is a tie, the mayor may cast the deciding vote. Carrollton v. Clark, 21 Ill. App.? 74; Village of Hazelcrest v. Lambert, 343 Ill. 105,174 N.E. 868; Mount City v. Shields, 220 Mo. App. 798, 278 S.W. 798,799; 7 R.C.L. Supp., p. 4733."
In Judge Dillon's work on Municipal Corporations, (5th Ed.) § 513, p. 834, that learned authority said at page 835:
"His functions are intended to be, and usually are, of an executive or administrative character, and whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute. In this view, in the absence of a statute necessarily implying that he has the same standing in the council as any other member, and particularly when his powers are expressly stated to be to preside at meetings and to give a casting vote in case of a tie, he is only a member of the councilsub modo, and to the extent of the power specially committed to him * * *."
And at page 837 we read: "By providing that he shall have a casting vote, it is implied that he shall have no other vote. When a tie exists, the right of the mayor to give a casting vote is not affected by the fact that the question before the council involves the approval or disapproval of some action on his part *Page 376 as mayor. In case of a tie he may vote, although it be on a motion to confirm an appointment made by him. * * *"
The Legislature of Iowa gave to the mayor of the City of Winterset, and cities of that class, the right to vote in case there was a tie. He was a member of the city council for the purpose of presiding and casting a vote in case of a tie, even tho not a member for any other purpose. It is a rule of parliamentary procedure that the presiding officer — although he may not be a member of the body over which he is presiding — has a right in case of a tie to cast his vote. That rule applies even in the Senate of the United States, where the Vice President may vote in case of a tie. I appreciate that there are rules of procedure governing various bodies, including the Senate of the United States, and that we are here confronted with the construction of a statute, but, it seems to me that the procedure commonly used in parliamentary bodies, that a presiding officer has a right to cast his vote in case of a tie, points the way to what the Legislature meant when it enacted the statute before us. There should be some way to determine tie votes. A city council might, by a tie, have deadlocked some important matters. The mayor, the presiding officer, is in a position to cast his vote, and when the Legislature said as it did, that the mayor has a right to cast his vote in case of a tie, and there was no limitation placed upon it, I think that meant in case of any tie, and that the mayor of the City of Winterset had a right to vote.
I would affirm the decision of the lower court.