THE ATLANTIC REPORTER VOLUME 111 BOWEN V. CITY OF PORTLAND. provisions of this section, and if appointed his (Supreme Judicial Court of Maine. August 7, be filled from the unexpired term." 1. Statutes construction. 1920.) In point of fact it may be stated, though 181(1)-Intention controls in not specifically related to the question this case involves, that the engrossed bill, in the The highest of all canons for the construc-office of the secretary of state, shows origtion of a statute is that intention will control inal text of the law to be that vacancies interpretation. shall be filled "for" and not "from" an unexpired term. 2. Municipal corporations 182 Term of chief of police terminated in accordance with statute, though predecessor held over. Under Priv. & Sp. Laws 1909, c. 370, providing chief of police of city of Portland shall be appointed by mayor and hold office for five years, rendering present chief eligible, where statute became effective July 3 of given year, such day marked starting point for first regular term, which continued to July 3, 1914; but, though first appointee held over for default of successor until November 2, 1914, successor's term expired July 2, 1919, terminating his right to salary. After the act became effective, Walter H. in Portland, was appointed to be chief of Dresser, then head of the police department police. His commission embraced a term of five years, predating in count four days to the day on which and from which the statute first was efficient. At the expiration of his term, by limitation of time, on July 2, 1914, no one clothed with insignia of office, and empowered to exercise its functions, appeared as his successor. Accordingly Mr. Dresser held office over, until plaintiff came Report from Superior Court, Cumberland forward, exactly four months later, bearing County, at Law. Action by Daniel L. Bowen against the City of Portland. On report from the Superior Court. Judgment directed to be en tered for defendant. * commission, dated some three weeks earlier, * from "for the term of five years the date of qualifying of said appointee." Dresser thereupon retired from, and plaintiff assumed, official station. On July 3, 1919, while, as plaintiff claims, four months of his five-year term yet remained, Mr. Irving S. Watts was duly appointed chief of po lice. Mr. Watts at once qualified. Plaintiff, Arthur D. Welch and William C. Eaton, throughout the four-month period next folboth of Portland, for plaintiff. lowing, demanded that he himself, and not Argued before SPEAR, PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ. H. P. Frank, John T. Fagan, and H. C. Watts, should be recognized as chief; his Wilbur, all of Portland, for defendant. insistence being that official term for him continued for five consecutive years, reckonDUNN, J. For 24 years, up to 1909, the ing from the time he entered office. Defense marshal or head of police in Portland was is rested on the theory that regular terms appointed by that city's mayor, and held of the office succeed each other at quinquenoffice at the latter's will. In 1909, by chap-nial intervals, beginning with the day that ter 370 of the Private and Special Laws, operative July 3d, the Legislature enacted: "The chief of police shall be appointed by the mayor and shall hold office for the term of five [1] In the record of legislative doings, as years. The present chief of police elsewhere, dexterity of phrase is not always shall be eligible to appointment under the revealed. Nevertheless, meaning usually is ** * the authorizing statute first had effect. Practical inquiry is what certain language in the statute means. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes as scrutable as though all the resources of [tive appointments" (article 6, § 4); or, "Judges * $ shall hold burnished rhetoric obtained. The highest of and registers of probate all canons for the construction of a statute their offices for four years, commencing on the is that intention will control interpretation. first day of January next after their election" (article 6, § 7). No clearer statement has been made as to the dominating influence of intention than that which is found in Kent's Commentaries: In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter. When the words are not explicit the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the remedy in view, and the intention is to be taken or presumed according to what is consonant with reason and good discretion. 1 Kent's Com. § 462. Cursory reading would indicate beginning of term as fixed in the event "present chief of police" were appointed, and solely in such event. But the "present chief of police" was already eligible to new appointment. Reference in the act to him, as one eligible for appointment to office, signified not more than his holding of office manifested. Nor did the Legislature direct his appointment; determination of that subject is left to the option of the mayor. But the existing commission of the "present chief of police" the new statute probably would terminate. To make clear it intended no discrimination against him, in removing tenure of office from the pleasure of appointive agency, but designed only to make the term more secure than it was before, the Legislature said, in sub Modern tendency, concerning incumbency of public office, is toward the establishment, either by Constitution or by statute, of terms of definite duration. This idea is strongly suggested in French v. Cowan, 79 Me. 426, 10 Atl. 335. That case and Wilson v. McCarron, 112 Me. 181, 91 Atl. 839, arose under the self-same statute. Decision in the first mentioned was shaped by the rule that mandamus is not an appropriate remedy to try title to office as against one in possession under color of right. Viewing that case in the aspect of what was regarded as its merits, this court remarked that contestants each claimed the same official station under a statute which, when read in connection with the act it amended, divided the terms of office of city marshal in Lewiston into bi-stance: ennial periods, following each other, closely and continuously, from an initial starting point. But this statement, being alien from the determinative factor in the case, does not attain above dictum. More recently, in Wilson v. McCarron, supra, the court, differently interpreting statutory situation, held that the Legislature had created an office and designated length of its term, but had not undertaken to define the time when the term should begin or end, and that it had made no provision for filling vacancy. What Mr. Justice Foster said as dictum in the one case, and Mr. Justice Haley spoke in speaking the court's decision in the other, is supported by reasoning and principle, argumentatively ascribing accuracy to respective primary premise. In the present case the statute provides that, subject to removal, the chief of police "shall hold oflice for the term of five years." Stopping there, meaning is clear. There are no words of limitation, as in the general statute relating to tenure of certain public officers, like "and no longer, unless reappointed." R. S. c. 2, § 41. Nor is beginning of term expressly marked as in the Constitution: "When this act becomes effective, the present chief of police shall be eligible for appointment to the term which shall then begin, if the mayor shall elect to appoint him." The This interpretation may not follow exact purport of the words actually used, but it gives sensible and intelligible effect to language readily lending itself thereto. statute not only measures up to all the requirements indicated in Wilson v. McCarron, supra, as essential to the fixing of a definite term, but its interpretation would find abundant support in French v. Cowan, supra, were that case authoritative in citation on the query here. [2] The statute became effective July 3, 1909. That day marked starting point for the first regular term. That term continued by force of the appointment to July 3, 1914. By operation of law the incumbency of the appointee for the first regular term was prolonged, beyond the expiration of specific appointment, to November 2, 1914, awaiting coming of a successor; such appointee, without further designation, meanwhile continuing an arm of the law, holding office as a trust of the state. Bath v. Reed, 78 Me. 276, 4 Atl. 688; Bunker v. Gouldsboro, 81 Me. 188, 16 Atl. 543; Auburn v. Water Power (111 A.) Co., 90 Me. 71, 37 Atl. 335. Then plaintiff | ner. For that purpose a local improvement came; not to fill out what remained unex- is defined in the act (article 20, § 1) as "one pired of a five-year term, for the office was the cost of which, or a portion thereof, may not vacant in the sense of being destitute be assessed upon lands in the vicinity thereof lawful occupant, though for four months of benefited thereby." A specific enumeration it was in condition that appointment thereto of such improvement is therein enumerated, might have been made; but he came to oc- among them laying out, widening, straightencupy for the second regular five-year peri-ing, extending, changing, or altering in any od, four months of which conjoined acts of the mayor and himself had caused to lapse. That lapsing they were as powerless to repair as man is to restore a day that is done. The plaintiff's term of office as chief of police in Portland expired with the 2d day of July, 1919. From that time on he is without right to salary of the office. In accordance with the stipulation of the report, judgment will be entered for the defendant. SPEAR, PHILBROOK, and DEASY, JJ., concur. MORRILL and WILSON, JJ., concur in result. LOGAN v. BELSFERD, City Clerk, et al. (No. 1.) manner, or grading or altering or paving or repaving or otherwise improving or reimproving any street, or curbing or recurbing, guttering or reguttering any sidewalk; and general power by ordinance is given "whenever convenient to carry on one or more of such works as one improvement." Prior to the passage of such ordinance it is provided that the notice of the pendency of the ordinance shall be mailed to every known property owner affected, "and a hearing ac corded to every person interested therein." Section 10 of article 20 of the act provides that no "local improvement" shall be undertaken where objection thereto is filed with the municipal clerk, in writing, by two-thirds in value of the lands proposed to be assessed for such improvements, before the final passage of the ordinance. In this situation the commissioners of the city of Beverly had be (Court of Errors and Appeals of New Jersey. fore them for introduction an ordinance pro June 18, 1920.) (Syllabus by the Court.) Municipal corporations 298, 303(1)—Ordinance for improvement passed without hearing on remonstrance invalid. "The Home Rule Act" (chapter 152, Laws 1917) provides for the filing of a remonstrance by property owners affected by a proposed local public improvement. Such a remonstrance was filed, but was not acted upon by the city commissioners, and no hearing was accorded the remonstrants, but the ordinance was passed without reference to the remonstrance. Held: (1) That the ordinance passed under such circumstances was invalid. (2) That the hearing accorded by the statute in such cases was a condition precedent to the valid exercise of the statutory power to pass the ordinance. Kalisch, J., dissenting. Appeal from Supreme Court. Proceedings by Garret D. Logan against W. Fred Belsferd, City Clerk of the city of Beverly, and others. Judgment for plaintiff, and defendants appeal. Affirmed. viding for the construction of sidewalks and alone, but for the "construction, reconstruc- The latter ordinance was in effect so far as title is concerned a resuscitation of an ordinance introduced at a meeting on April 22, limited in its operation to certain streets, but at the meeting of May 20 its operation was enlarged so as to cover, in the language of the title, "the streets of the city." It will be observed, therefore, that the Francis J. Smith, of Camden, for appel- ordinance introduced at the meeting of May lants. 20 was not the ordinance to which the propPalmer & Powell, of Mt. Holly, for respond- erty owners were notified to respond, but a ent. radically different measure. The ordinance, however, passed its first reading and was orMINTURN, J. Among the powers confer- dered published in the local paper, and nored upon municipalities by chapter 152 or the tice was thereby given that at the meeting of Laws of 1917, known as the "Home Rule June 3 it would be taken up for final readAct," was that of undertaking and complet- ing. At that meeting a remonstrance against ing local improvements in a specified man- its passage was filed with the commissioners, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |