City of San Francisco v. Hazen

         Argued, that as the ordinance was passed by a majority of those members present and voting upon it, that the judgment of the Court below was correct. King v. Hoyt, 6 T. R. 430. King v. Gent, 8 Barn. & Cress. 363. 1 Ibid. 609. King v. Courtney, 9 East, 246. 4 T. R. 823. King v. Miller, 6 Ibid. 280. Cahill v. Kalamazoo Ins. Co. 2 Doug. Mich. R. 137. Smith v. Morse , 2 Cal. 554.

         JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

         OPINION

          MURRAY, Judge

         The first and second sections of the third article of the Charter of the City of San Francisco, passed April 15, 1851, provide, that " the legislative power of the city of San Francisco shall be vested in a Board of Aldermen and a Board of Assistant Aldermen, which shall each consist of one member from each ward, and shall form the Common Council of the city. A majority of each Board shall constitute a quorum, but a smaller number may adjourn from time to time, and may compel the attendance of absent members. Either Board may originate or amend any ordinance or resolution, and no ordinance or resolution shall be passed, except by a majority of all the members elected."

         The ordinance under consideration in this case was passed by a vote of four in the affirmative to three in the negative; there being a vacancy in the Board by reason of the resignation of one member.

         The first position assumed by the appellant is, that the ordinance is void, because five members a majority of eight, the whole number originally elected, did not vote in favor of its passage.

         On the part of the respondent, it is claimed that the word " elected," as used in the second section already quoted, is not to be taken in its past, but perfect or present sense, and must be limited to those actually in office, without regard to those who may have resigned. In construing statutes, force and effect should be given to every part of them. Thus, where a law is capable of two constructions, that one must be adopted which will preserve the sense, as well of the several parts as of the whole Act. Testing the present case by this rule, it is apparent that either the second or fourth subdivision of the second section of the third article, before quoted, are redundant, if the doctrine contended for by the respondent is correct; the second subdivision having provided that a majority of the members elected shall constitute a quorum, the fourth but reenacts the same provision. Such is not the case. The charter has provided the number of members in each Board; the second section provides that a majority of each Board shall constitute a quorum for the transaction of business. The number of members being eight, five would constitute a quorum; and by the fourth subdivision, a majority of all the members elected (which would be five) must vote in favor of every ordinance or resolution. If such is not the plain meaning of the section, and if the word " elected" is to be taken in its present sense as applying to members actually in office, it follows as a necessary consequence, that by resignation, or otherwise, the Board may be reduced to one member, and he would be as competent to act as a full Board.

         The respondent's counsel has very ingeniously argued that the words " passed by a majority," etc., do not necessarily imply a consent or acquiescence, but only a presence or participation in the act; as thus, if five were present, three voting in the affirmative and two in the negative, the ordinance might be said to be passed by the whole as a body. To illustrate this position, we have been referred to the Constitution of the United States, as well as of this State; in both of which, different language has been employed.

         We think they afford no argument; more especially when it is apparent, as we have already shown, that to maintain this construction, a part of the section must be treated as redundant and superfluous, particularly when the whole scope of the charter shows clearly the intention of the Legislature to fetter and curb the action of the Council so as to prevent the passage of any ordinance or resolution, unless by an actual concurrence of a majority of all the members elected to each Board.

         Judgment reversed, with costs.