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Ordinarily, to each of the separate houses is given particular functions or duties and powers with relation to the performance of acts which affect them only.28 The upper house or branch is usually composed of less members than the lower, 29 and in addition to the legislative powers possessed by each, the upper house may have, in addition, the sole power conferred upon it of ratifying or confirming the appointment or election of officers or employes after their nomination or selection by the proper executive officers. The upper house or body may also alone possess, in addition to such power of confirmation or ratification, that of impeaching public officers.

§ 502. Members of municipal councils.

The members of municipal councils proper, for the following discussion will relate particularly to them, are usually called aldermen, assemblymen, trustees, or selectmen.30 They are elected pursuant to the provisions of a municipal charter or if residents of a community not of sufficient size to enjoy under the laws of the state such a governing instrument, then, pursuant to statutory authority.2 The place and time of their election and the manner in which it is conducted being regulated by laws pertaining to elections are properly considered under that subject." They are elected further to represent especially the people residing within the certain limited or restricted areas of a particular public corporation which are fixed by general law or ordi

the board of health has acted deliberately and unequivocally." Opinion of Justices, 6 Me. (6 Greenl.) 514; Chandler v. City of Lawrence, 128 Mass. 213; Wetmore V. Story, 22 Barb. (N. Y.) 414; Beekman's Case, 11 Abb. Pr. (N. Y.) 164; Id., 19 How. Pr. (N. Y.) 518.

28 State v. Chapman, 44 Conn. 595; Buckton v. People, 12 Colo. App. 86.

29 Foley v. City of Haverhill, 144 Mass. 352; Wetmore v. Story, 22 Barb. (N. Y.) 414.

30 Mintzer v. Schilling, 117 Cal.

361; Central Bridge Corp. v. City of Lowell, 81 Mass. (15 Gray) 106; Dey v. Jersey City, 19 N. J. Eq. (4 C. E. Green) 412; In re Newport Charter, 14 R. I. 655; State v. Champlin, 16 R. I. 453; Langdon v. Town of Castleton, 30 Vt. 285; McFarland v. Gordon, 70 Vt. 455; Richards v. Town of Clarksburg, 30 W. Va. 491.

31 Town of Decorah v. Bullis, 25 Iowa, 12; City of Terre Haute v. Lake, 43 Ind. 480.

32 Giles v. Winton, 4 Lack Leg. N. (Pa.) 171.

33 Sections 98 et seq., ante.

nance. The pertinency of these brief suggestions lies in the fact that legislative action to be legal and therefore binding upon the persons and property of a given community must have been passed or adopted by those who have the power under general laws or constitution of the state." Legislative measures passed by an illegal assembly or legislative body have no operative effect. The first test of the validity of legislation whatever its grade is the right of the legislative body to act, and then a question may arise of its power to act in respect to a particular question."

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§ 503. Organization of legislative bodies.

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Such bodies have the power of organization; that is, the right to elect officersas and designate committees and subcommittees in order that the purpose for which they are elected may be carried out. This power of organization includes the right to select presiding officers unless provided for by general law, and those who perform the clerical and executive duties of the deliberative or legislative body. The power of selection or election does not. include, unless it is specially given, the right to fill vacancies in the list of members occasioned by death, withdrawal or for

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34 State v. Cogshall (Mich.), 65 N. W. 2; State v. McMillan, 108 Mo. 153, 18 S. W. 784; State v. Jersey City, 53 N. J. Law, 112, 20 Atl. 829; Bennett v. Common Council of Trenton, 55 N. J. Law, 72, 25 Atl. 113. An act of the legislature providing for the organization of city councils, the number of members and the districts from which selected must pass, to be valid, successfully the test of its being special and unconstitutional. Appeal of Ayars, 122 Pa. 266, 2 L. R. A. 577.

35 State v. Alter, 5 Ohio Circ. 253; State v. Kearns, 47 Ohio St. 566.

36 City of Savannah v. Hussey, 21 Ga. 80, 68 Am. Dec. 452.

37 Rogers v. Jones, 1 Wend. (N.

Y.) 237; State v. Earnhardt, 107
N. C. 789.

38 Trowbridge v. City of Newark, 46 N. J. Law, 140; People v. Bedell, 2 Hill (N. Y.) 196.

39 Branham v. Lange, 16 Ind. 497; Com. v. Hillenbrand, 96 Ky. 407; Van Vorst v. Jersey City, 27 N. J. Law (3 Dutch.) 493.

40 Samis v. King, 40 Conn. 298; People v. Conover, 17 N. Y. 64.

41 Gray v. Granger, 17 R. I. 201, 21 Atl. 342; Roche v. Jones, 87 Va. 484.

42 Western Granite & Marble Co. v. Knickerbocker, 103 Cal. 111; Town of Valverde v. Shattuck, 19 Colo. 104; City of Somerset v. Somreset Banking Co., 22 Ky. L. R. 1129, 60 S. W. 5; State v. Wofford, 121 Mo. 61; Parker v. Common

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§ 504. Qualifications of members.

These bodies possess usually the exclusive right to determine and pass upon the eligibility or the qualifications of those claiming membership.43 Courts or judicial bodies have no power to pass upon questions concerning the eligibility or qualifications. of the members of a deliberative assembly except as these may be affected by an irregularity in the election. This principle is a matter not only of a professional but also of common knowledge. Its application does not, however, divest the courts of their corrective powers in the consideration of action by legisla

Council of Newark, 57 N. J. Law, 83, 30 Atl. 186. A bill providing for the filling of vacancies held unconstitutional as special legislation. Goldberg v. Dorland, 56 N. J. Law, 364; Wilson v. Inhabitants of Trenton, 56 N. J. Law, 469; Hamilton County Com'rs v. Rosche, 50 Ohio St. 103, 19 L. R. A. 584. 43 Green v. Adams, 119 Ala. 472; 24 So. 41; People v. Metzker, 47 Cal. 524; Selleck v. Common Council of South Norwalk, 40 Conn. 359; Booth v. Arapahoe County Ct., 18 Colo. 561; Naumann v. City Canvassers of Detroit, 73 Mich. 252, 41 N. W. 267; Schwartz v. Flatboats, 14 La. Ann. 243; People v. Harshaw, 60 Mich. 200. Where the mayor is constituted a part of the city council by charter provision, the right given to that body to judge of the qualifications and election of its members applies to the mayor as well.

Cate v. Martin, 69 N. H. 619, 45 Atl. 644; Opinion of Justices, 56 N. H. 570. The same rules applies to a decision of the state senate of New Hampshire. Salmon v. Haynes, 50 N. J. Law, 97, 11 Atl. 151; Garside v. City of Cohoes, 58 Hun, 605, 12 N. Y. Supp. 192. Such a provision will not apply to the mayor of a city, as he is not one of

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the members of the common council. within the spirit or intent of the charter. Simon v. Common Council. of Portland, 9 Or. 437; Com. v. Common Council of Philadelphia, 23 Pa. Co. Ct. R. 631; Lamb V.. Lynd, 44 Pa. 336; Jobson v. Bridges, 84 Va. 298, 5 S. E. 529. Such a right can only be exercised in case of con-test. State v. Trimbell, 12 Wash. 440.

44 McGivney v. Pierce, 87 Cal.. 124; Foley v. Tyler, 161 Ill. 167; Keating v. Stack, 116 Ill. 191; Kendell v. City of Camden, 47 N. J. Law, 64. A member having once. been seated after investigation by a council, the sole judge of the elec-tion and qualification of its members cannot be made the subject of a second investigation. McVeany v. City of New York, 80 N. Y. 185; State v. Kraft, 18 Or. 550; Auchenbach v. Seibert, 120 Pa. 159, 13 Atl. 558; State v. De Gress, 72 Tex. 242; City of New Orleans v. Morgan, 7 Mart. (N. S.; La.) 1, 18 Am. Dec.. 232. But see the case of State v.. Kempf, 69 Wis. 470, 34 N. W. 226, where the court holds that the power to determine and pass upon the election and qualifications of members is not exclusive but concurrent with the power of the courts: to determine the same question.

tive bodies taken without authority or in an arbitrary, fraudulent or illegal manner.45 The right can be exercised by legislative bodies as affecting only the members of that body at the time such action is taken, and an outgoing assembly has no power to pass upon the qualifications of members of an incoming one,"

45 Hawke v. McAllister, 4 Ariz. 150, 36 Pac. 170; San Diego County v. Seifert, 97 Cal. 594; Board of Aldermen v. Darrow, 13 Colo. 460; State v. Pinkerman, 63 Conn. 176, 22 L. R. A. 653. One not legally a member of such board or body has no power to participate in the proceedings. State v. Anderson, 26 Fla. 240, 8 So. 1; Ridley v. Doughty, 85 Iowa, 418; Doran v. De Long, 48 Mich. 552; Banning v. McManus, 51 Minn. 289; State v. Fitzgerald, 44 Mo. 425; Bartch v. Meloy, 8 Utah, 424.

46 Green v. Adams, 119 Ala. 472, 24 So. 41. "The words used, 'shall judge of the qualifications, elections and returns of its own members,' are those used in the constitution of the state in respect to the houses of the general assembly and their power to pass upon the eligibility, election, etc., of their own members, and they have always been understood in that connection to mean, and they do mean, that the houses respectively, after they have assembled and been organized, shall judge of their own membership, and not that the houses of an outgoing general assembly shall pass upon the membership of houses which have been elected but whose term of official existence has not commenced. If there should be, for instance, a call session of the general assembly of 1896-1897 after the election of the general assembly of 1897-1898, but before its convention at the time prescribed by law, it would never occur to anybody

that such call session could at all inquire into or judge of the quali fications, elections and returns of members of the succeeding general assembly. This would not be for each house to judge of the election, returns and qualifications of its own members, but for the houses of one general assembly to judge of the membership of entirely distinct bodies, the houses of another general assembly, elected but not yet in organized existence. And these words mean the same thing when applied to other bodies-that the body whose membership is drawn in question shall judge thereof for itself and not its predecessor shall determine the qualifications, elections and returns of its membership. They mean when applied to the town councils of Ft. Payne that each succeeding council shall pass upon the qualifications of members elected to it and shall determine who have been elected to it and not that the preceding council in office up to the time of its election shall discharge these functions in respect of its membership. Thus as it must be construed, the provision may be an unwise and impracticable one where all members of the council are elected at the same time and by the same constituency, in that the same grounds of contest may exist against all the members; but with that we have nothing to do. Whether a wise provision or not, or practical of execution or not generally or in a given case, it confers no powers, judicial or otherwise,

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and further, has no capacity to limit or restrict the action of members not present. It is further held universally that no person has the power to pass upon his own right to serve as a member of such a body or, in other words, act as a judge upon his own.

case.47

§ 505. Meetings; when held.

The meetings of such bodies to be legal must have been called by notice, pursuant to some statutory authority and under the regulations and provisions of the law with respect to them.8. They must be held at the time fixed by law.49

upon the outgoing council and can afford them no excuse or justification for failure to declare the election of their successors as shown by the returns certified by the inspectors." Hudmon v. Slaughter, 70 Ala. 546; Hilton v. Common Council of Grand Rapids, 112 Mich. 500, 70 N. W. 1043; Roberts v. City of Camden, 63 N. J. Law, 186, 42 Atl. 848,

47 Burwell v. Hawkins, 92 Ill. App. 459; City of Evanston v. Carroll, 92 Ill. App. 495.

48 Burns v. Thompson, 64 Ark. 489, 43 S. W. 499. A notice in writing stating the time, place and purpose of the meeting is necessary to a legal meeting of school directors. Gill v. Dunham (Cal.) 34 Pac. Rinehart, 88 Iowa, 37;

68; Rock v. Beaver Creek Tp. Board v. Hastings, 52 Mich. 528. A meeting irregularly called will be considered valid if all the members were present and participated in the transaction of business.

Wayne County Sup'rs v. Wayne Circuit Judges, 106 Mich. 166, 64 N. W. 42. It is not necessary to file proof of service of the notice required by law. State v. Kantler, 33 Minn. 69; Tierney v. Brown, 67 Miss. 109, 6 So. 737; People v. Par

ker, 3 Neb. 409; Morris v. Merrell, 44 Neb. 423, 62 N. W. 865; Schoepflin v. Calkins, 5 Misc. 159, 25 N.. Y. Supp. 696; Cassin v. Zavalla County, 70 Tex. 419, 8 S. W. 97. But see Barr v. New Brunswick, 58 N. J. Law, 255, 33 Atl. 477, which holds that it is not necessary for the record to contain the facts relative to the giving of the notice required by the city charter.

49 Ex parte Benninger, 64 Cal.. 291; People v. Town of Fairbury, 51 Ill. 149; State v. Smith, 22 Minn. 218. "The provision of the charter that the 'council shall meet at such time and place as they, by resolu-tion, may direct,' is mandatory and directory, but not prohibitory. This requirement contains no negative upon its meeting at other times than those fixed by resolution. Inasmuch as it is not only the duty but the right of each member to be present and participate in the deliberations and proceedings of the council, a legal notice to all of every meeting, whether regular or special, is req-uisite, in order to enable a quorum of the council to act, and to give validiy to its transactions. This: object is accomplished, in the caseof its regular meetings, by a reso-

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