(c) Action; how taken. The manner of taking action, whether in the transaction of ordinary business or the election or appointment of officers or employes is designated by charter or statutory provisions or in their absence, by the adoption of governing rules. It is customary to require on all questions of importance the calling of yeas and nays and to have a record made. Where such provisions exist as found in the charter or statute, they are considered mandatory but if the requirement is one originating from the body itself under the rule of law stated later, these requirements may be waived or modified without affecting the validity of the proceedings."

§ 509. Rules of order.

78

A legislative body possesses the inherent power to make rules consistent with the general law for its own government and for regulating and controlling the transaction of its business.80 This power may be given also either by statute or charter; if derived from these sources, it must be exercised in the manner prescribed.81 If the authority does not exist, then, as already stated, the inherent or implied power follows and it is cus

transacted generally by plain men not familiar with parliamentary law. Therefore, their proceedings must be liberally construed in order to get at the real intent and meaning of the body." It was in reference to county boards that this language was used and it was subsequently quoted with approval in the case of Wisconsin Cent. R. Co. v. Ashland County, 81 Wis. 1, where the court was determining the legality of a town meeting.

78 Arthur v. Adam, 49 Miss. 404; In re Carlton St., 16 Hun (N. Y.) 497.

79 Walter v. Town of Union, 33 N. J. Law, 350; Vreeland v. Town of Bergen, 34 N. J. Law, 438; Kohler v. Town of Guttenberg, 38 N. J. Law, 419. But the state legislature may ratify an irregular proceeding if it possesses the power

in the first instance to require the formality.

80 Malloy v. Board of Education of San Jose, 102 Cal. 642, 36 Pac. 948. The power given, however, in a city charter, to adopt rules for the conduct of its proceedings does not authorize it to change a charter provision requiring a majority of its members as a quorum for the legal transaction of business. Higgins v. Curtis, 39 Kan. 283; Zeiler v. Central R. Co., 84 Md. 304, 34 L. R. A. 469; Heiskell v. City of Baltimore, 65 Md. 125.

81 Atkins v. Phillips, 26 Fla. 281, 10 L. R. A. 158; Swift v. People, 162 Ill. 534, 44 N. E. 528, 33 L. R. A. 470; Mann v. City of Le Mars, 109 Iowa, 251; Wheeler v. Com., 98 Ky. 59; City of North Platte v. North Platte Waterworks Co., 56 Neb. 402, 76 N. W. 906.

It

tomary in such cases to adopt those rules of order or regulations for the conduct of the members in performing their prescribed duties, adopted by deliberative bodies and which are recognized and termed as "general parliamentary usage or custom."s2 follows from the existence of the power to make these rules of order that all deliberative bodies have the right to enforce them. It does not follow, however, that this can be done in an arbitrary or an illegal way.83 Notice must be given to the member charged with the commission of an offence, the nature of the charge must be known by him, an opportunity must be given for defense and the trial or hearing must be had in an orderly way and pursued to a final consideration of the charge. The power possessed to make rules, it necessarily follows that by the proper methods, a legislative body may abolish, modify or waive them if this can be done without conflict with statutory or charter provisions.84

§ 510. Elections.

As already suggested, legislative bodies may have the power to select subordinate public officials 85 or employes,se and this right is usually exercised through an election. The election may pro

82 People v. Common Council of Rochester, 5 Lans. (N. Y.) 11. Members of legislative bodies alone have the right to depart from parliamentary rules.

83 Thompson v. Whipple, 54 Ark. 203.

84 City of Greeley v. Hamman, 17 Colo. 30; Swindell v. State, 143 Ind. 153, 35 L. R. A. 50. Vote of twothirds necessary to suspend rules. City of Chariton v. Holliday, 60 Iowa, 391; Mann v. Le Mars, 109 Iowa, 251; Wheeler v. Com., 98 Ky. 59, 32 S. W. 259; Bennett v. City of New Bedford, 110 Mass. 433; Holt v. City Council of Somerville, 127 Mass. 408; Davies v. City of Sagi

86 Kinderman v. West Bay City, 117 Mich. 516, 76 N. W. 10; Sharp v. City of New York, 40 Barb. (N.

naw, 87 Mich. 439; State v. Archibald, 5 N. D. 359.

85 State v. Philips, 30 Fla. 579; State v. Curry, 134 Ind. 133, 33 N. E. 685. Where an elective official holds his office at the pleasure of an elective body his formal removal is necessary before a successor can be legally selected. But see McAllister v. Swan, 16 Utah, 1, 50 Pac. 812.

Goodloe v. Fox, 96 Ky. 627, 29 S. W. 433; Chase v. City of Lowell, 73 Mass. (7 Gray) 33. The selection by the city council of an officer entitled to compensation and for a definite period constitutes a contract when accepted by the official the obligation of which cannot be

Y.) 256; Com. v. Wyman, 137 Pa. 508.

89

ceed either viva voces or by ballotss which can be either open or secret. The authority for an election must necessarily exist in some law governing such body and it must be held at the time prescribed and under the conditions required. The principle cannot be too often emphasized that where a right exists as proceeding from some public or private statute, it is strictly construed and if its existence is doubtful, that doubt will be resolved against it. The power of a legislative body in respect to the subject of this section may be what is termed confirmatory only." If a body is divided into houses, the power of the confirmation is possessed usually by the upper house under whatever name it may be termed.92 The selection of all subordinate officials or employes may be made by appointment which, of course, is substantially the equivalent of an election.93 The right of a delib

subsequently impaired by the passage of an ordinance affecting either his term of office or compensation.

O'Brien v. Thorogood, 162 Mass. 598; State v. Murray, 41 Minn. 123. Where a date for the election of a city attorney is designated by law, the city council cannot take legal action in this respect prior to that day.

State v. Wadhams, 64 Minn. 318, 67 N. W. 64. An exercise of the legislative power is exhausted in the selection of a public official for a definite period. Ott v. State, 78 Miss. 487, 29 So. 520; State v. Wimpfheimer, 69 N. H. 166, 38 Atl. 786; Greer v. City of Asheville, 144 N. C. 678; State v. Catlin, 84 Tex. 48, 19 S. W. 302.

87 State v. Lasher, 71 Conn. 540, 42 Atl. 636, 44 L. R. A. 197; Goodloe v. Fox, 96 Ky. 627, 29 S. W. 433; Mitchell v. Brown, 18 N. H. 315.

ss State v. Barbour, 53 Conn. 76; Tillman v. Otter, 93 Ky. 600, 20 S. W. 1036, 29 L. R. A. 110; Keough v. Aldermen of Holyoke, 156 Mass. 403, 31 N. E. 387. An illegible ballot should be considered as a scat

tering vote. Boehme v. City of Monroe, 106 Mich. 401; Cooley, Const. Lim. (6th ed.) c. 17, p. 760.

87 See note 30 Am. & Eng. Corp. Cas. 334; Attorney General v. Connors, 27 Fla. 329, 9 So. 7; Snow v. Hudson, 56 Kan. 378; City of Hoboken v. Harrison, 30 N. J. Law, 73. Without express authority in its charter or the general laws, a municipal corporation cannot create an office and define its duties.

90 Willard v. Borough of Killingworth, 8 Conn. 247; City of Lafayette v. Cox, 5 Ind. 38; Leonard v. City of Canton, 35 Miss. 189; Nichol v. City of Nashville, 28 Tenn. (9 Humph.) 252.

91 Randall V. Schweikart, 115 Mich. 286, 73 N. W. 417; State v. Yates, 19 Mont. 239, 47 Pac. 1004, 37 L. R. A. 205; Hawkins v. Cook, 62 N. J. Law, 84, 40 Atl. 781.

92 Fritts v. Kuhl, 51 N. J. Law, 191, 17 Atl. 102; State v. Finnerud, 7 S. D. 237, 64 N. W. 121.

93 State v. Dillon, 125 Ind. 65; Horan v. Lane, 53 N. J. Law, 275; Greer v. City of Asheville, 114 N. C. 678, 19 S. E. 635.

erative body to select its own employes impliedly exists." The power to select subordinate public officials must be found in some. statutory provision.95 Where a date is fixed by law or notice for the holding of an election, a majority of those present are legally competent to elect designated officers although this number may be less than that required as a quorum for the transaction of ordinary business.96

97

98

§ 511. Limitations upon the power of appointment or election. Without considering the eligibility of the candidate for an appointive or elective position which will be considered later in that chapter pertaining to public officers, the power of a legislative body may be restricted or limited by the existence of general statutes which either grant or withhold the right except in certain specified cases. A common restriction is one which prevents a person from being a candidate because at the time of his candidacy or election he holds a place of profit or honor in the gift of the elective body. The state or the municipality may also haveadopted civil service laws so called, which are necessarily restrictive in their character.99 General legislation may also be found giving to the veterans of the Civil War a preference in respect to the filling of certain offices or the doing of certain work. 100 The constitutionality of such laws has been seriously questioned and if tested, there is, perhaps, no doubt but that they would be held unconstitutional because special legislation and because of the special preference given to certain individuals. Public opinion has, however, tolerated their existence.

94 Russell v. City of Chicago, 22 Ill. 285; Com. v. City of Pittsburgh, 14 Pa. 177.

95 Blair v. Ridgely, 41 Mo. 63; State v. Staten, 46 Tenn. (6 Cold.) 233.

96 Beck v. Hanscom, 29 N. H. (9 Fost.) 213; Kimball v. Marshall, 44 N. H. 465.

97 State v. Kearns, 47 Ohio St. 566; Whipple V. Henderson, 13

Utah, 484.

98 State v. Feibleman, 28 Ark.

424; Smith v. Moore, 90 Ind. 299; People v. Green, 58 N. Y. 295.

99 People v. Kipley, 171 Ill. 44, 41 L. R. A. 775, citing many cases and discussing the matter thorougly at great length. Chittenden v. Wurster, 153 N. Y. 664.

100 Stutzbach v. Coler, 168 N. Y. 416, 61 N. E. 697. See, also, 7 Mun. Corp. Cas., note, pp. 77-95, where a very full and complete resumé of the cases upon the question will be found. Thomas v. Beadle County Com'rs, 1 S. D. 452, 47 N. W. 452.

§ 512. Powers of legislative bodies.

Property or personal interests may be affected as the natural and logical result of action by a legislative body and to protect these from erroneous and illegal measures, the courts are usually given by statute corrective powers,101 although such power to exist need not be expressly granted. 102 The party aggrieved may exercise his right in an appeal where provisions for such are found,103 or in the commencement of summary proceedings,104 or