MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
May 7, 2010
RE:
Right of Mayor to Veto Appointment by City Council of Person to Fill Vacancy in
City Council
You have the following question: Does the mayor’s power to veto ordinances and
resolutions in the City Charter give him the power to veto appointments made by the city council
to fill vacancies in the city council?
The answer is no.
Article IV, Section 9 of the City Charter provides that:
The mayor shall not vote except in case of a tie, but he shall have
the right to veto in writing any ordinance or resolution passed by
the Aldermen, and sahell [sic] require a three-fourths vote of the
Aldermen at a subsequent meeting to pass any ordinance or
resolution over the Mayor’s veto.
On its face, then, the cited language in Article IV, Section 9 of the City Charter would
appear at first glance to apply to a resolution of the board of mayor and aldermen to appoint a
person to fill a vacancy on the board. However, where the appointment at issue is to fill a
vacancy on the city’s governing body, the courts–as far as I can determine, unanimously-- hold
that the mayor’s power to veto resolutions does not apply to such resolutions. The heavy weight
of authority even holds that the mayor’s veto power does not apply to positions outside the city’s
governing body over which that governing body has the power of appointment.
A problem in analyzing the cases on this question is that the majority of courts appear to
hold that the mayor’s veto power is legislative, and that the governing body’s power to appoint
officers is administrative. Some cases even hold that the governing body’s power to appoint
officers is judicial. Tennessee Supreme Court in Richardson v. Young, 125 S.W. 664 (Tenn.
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1910), dealing with the power of appointment at the state level, declared that:
Theoretically, the legislative power is the authority, to make, order,
and repeal, the executive, that to administer and enforce, and the
judicial, that to interpret and apply laws.... Whatever may have
been its nature theoretically, in practical application in this country,
this power has not been as belonging to either of the departments,
or any general rule observed in vesting it....We think from a
general review of the authorities, that it is now established that
under the American form of government the power of election or
appointment to office is a political power, not inherently
legislative, executive, or judicial, but which may be vested with
equal propriety in either of them, and that it is so treated and
applied in a majority of the states. [At 668-669]
However, it does not appear to me that it makes any difference whether the mayor’s veto
power is legislative, administrative or judicial; the cases stand for the proposition that it is not the
intent of the state legislature in giving the mayor the veto power to include the right to veto the
governing body’s appointment to fill vacancies in its own ranks, and that they will use any legal
device to accomplish that end.
As far as I can determine, there are no Tennessee cases dealing with the question of
whether the mayor’s veto power over ordinances and resolutions applies to the governing body’s
filling of vacancies on that body, but this question has arisen in other states, where the mayor’s
power of the veto of such appointments appears to have been unanimously denied.
But one of the cases that denied that right to the mayor is singularly important in
Tennessee for still reflecting the law that outlines the powers of mayors (and of county governing
bodies) in Tennessee. In Cate v. Martin, 46 A.54 (N.H. 1900), the question was whether the
mayor could veto the board of aldermen’s appointment to the vacant office of aldermen. A New
Hampshire statute said of the mayor, that:
he shall have a negative upon the action of the aldermen in laying
out highways, and in all other matters; and no vote can be passed
or appointment made by the board of aldermen over his veto,
unless by a vote of two thirds at least of all the aldermen elected.
[At 55]
The New Hampshire Supreme Court held that, “we are of the opinion that the defendants’
contention that the veto power of a mayor extends to and embraces a decision of the board of
aldermen as to the election of one of its members cannot be sustained. [At 55] The reason, said
that court, was that:
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.... for whatever the language of the statute giving the mayor a
negative “upon the action of the aldermen in laying out highways,
and in all other matters,” may mean, and whether it would or
would not be competent for the legislature to give to the exclusive
of a city a veto upon the action of the legislative branch of the city
government sitting as a court in the performance of a judicial duty,
it is enough to satisfy the present contention if the decision of
contested election case by the aldermen is not embraced in the
phrase “in all other matters,” and in support of the conclusion that
it is not, we cannot but regard the evidence as decisive. The
mayor of a city is not an alderman or councilman of the city in a
general or proper sense of those terms...He is not a member of
either branch [legislative or administrative] of the city council
unless expressly made by such law;...and when this is the case, it is
to the extent of such powers as are specially committed to him, and
no further that he is a part of the city council. He is not one of its
own members in the sense of which an alderman is; ...nor has it
been understood that he is to be counted in determining the
presence of a quorum... Applying the principles of these authorities
(and none have been found to the contrary) to the statutory
provisions relating to the mayor and aldermen cited in behalf of the
defendants, the result is indubitably to establish the proposition
that while the mayor is a constituent part of the...board for some
special purposes, he sits and acts in the board not in the capacity of
an alderman, but in the capacity of an ex officio presiding officer,
and exercises those powers only which have been specially
committed to him as the chief executive officer of the city. [At
55-56] [Numerous case citations omitted by me.]
The city governing body’s power to make appointments to fill vacancies in its own ranks
was a judicial function, said the court, that arose from its power to be the judge of elections in its
charter, and the judicial power was not subject to the mayor’s veto. I doubt that the Tennessee
courts would hold that the power of the City’s governing body to fill vacancies in its own ranks is
a judicial function, but Article II, Section 1, of the City Charter clearly and plainly gives the
board of mayor and aldermen the power to fill vacancies in its own ranks regardless of the extent
of the mayor’s right to veto ordinances and resolutions:
In the event of the death, removal or resignation, or change in the
domicile of the mayor or any alderman, the office shall be
automatically vacated, and the board of mayor and aldermen shall
fill the vacancy for the unexpired term.”
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It is extremely difficult to read into that provision an intention that the mayor could veto the
board’s appointments to its own body.
Here the importance of Cate v. Martin arises: As pointed out above, that case reflects the
law in Tennessee regarding the power of mayors. Like the mayor in Cate v. Martin, the your
Mayor has limited legislative powers: Under Article IV, Section 9 of the City Charter, he cannot
vote except in cases of a tie, but has the veto; he does not count towards a quorum; and he acts as
the presiding officer of the board. In short, he is not a member of the board of mayor and
aldermen, except for the limited purposes outlined in the charter. See Reeder v. Trotter, 215
S.W. 400 (1919) and the unreported case of Anderson v. Town of Gainesboro, 1992 WL 33893
(Tenn. Ct. App.)]. Those purposes do not include the right to veto the board of aldermen’s
appointments to fill vacancies in its own ranks. His right on that issue extends to his right to
vote in cases of a tie on questions of filling vacancies on the board.
In State v. Wagner, 82 N.E. 466 (Ind. 1907), the mayor had the veto power over
ordinances, orders and resolutions. A city council member resigned, and the city council
appointed a person to fill his vacancy. The mayor vetoed the appointment. The court held the
veto invalid, reasoning that:
the Legislature intended to confer upon the mayor, the power to
veto, not appointments to office, but such acts of the common
council as usually, in such bodies, take the form of resolution,
order or ordinance. While the appointment to office is not a
legislative function, yet the power to name the person or body who
shall make the appointment is legislative....It will be found from an
examination of the authorities cited in this opinion that it has been
uniformly held that the Legislature may vest the power of
appointment to office in the department of the government of
cities or town which is authorized to exercise legislative power, as
the authority granted to the common council to fill vacancies in the
office of councilman is in the nature executive, and the mayor’s
power to veto does not apply to such appointments. [At 467]
[Citations omitted by me.]
In Nicoletti v. Veitch, 191 A.2d 383 (Penn. 1963), a borough’s charter provided that the
city council would fill vacancies on the borough council by resolution. Another provision of the
charter obligated the mayor to approve or to veto ordinances and resolutions. The mayor vetoed
the council appointment of a person to fill the vacancy of a borough councilman who had
resigned. The Pennsylvania Supreme Court overturned the mayor’s veto, declaring that:
Although the term ‘every ordinance and resolution’ would seem to
be all inclusive, we have limited it by holding that the mayor does
not possess the veto power where its exercise would be deleterious
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to the conduct of borough government. Since stultification would
result if the mayor had to consider and approve every councilmanic
action, we have held for example that section 1007 does not
include resolutions and ordinances which are executive or
ministerial in nature. [Citations omitted by me.] For the same
reason, we have stated that the form of the councilmanic
action-i.e., motion, resolution, ordinance, etc., is not determinative
of the applicability of section 1007. [citations omitted by me.] An
examination of the Code indicates that the legislature also did not
intend to include within the mayor’s veto power resolutions passed
by council to fill vacancies under section 901.... Section 1993 of
the Code, which gives the mayor the power to break ties in council
states that the power arises whenever council by virtue of the
deadlock is unable to pass ‘any ordinance, resolution, or motion, or
to declare or fill any vacancy in its membership * * * (Emphasis
supplied.) This Section illustrates that the legislature intended a
dichotomy between ordinary resolutions of council and those
dealing with the filling of vacancies. [At 385]
Article IV, Section 9 of the City Charter, while it does not reflect the exact language of
Section 1003 of the Pennsylvania state law, is identical in purpose and intent: the mayor can vote
only to break ties; that is the function he has with respect to appointments by the board to fill
vacancies in its ranks.
The mayor’s right to veto resolutions did not include the right to veto the city governing
body’s appointment of a vice-chairman in Morris v. Cashmore, 253 A.D.657, 3 N.Y.S.2d 624
(S.C. New York). The court reasoned that:
The power to veto all resolutions is conferred on the mayor by
section 38 of the new Charter. We think it is clear that it was
never intended that the mayor of the City of New York was to have
the power of veto over such matters as the election of a vice
chairman, appointment of committees, or the adoption of rules by
the council. [At 629]
In Prezlak v. Pardone, 169A.2d 852 (Super. Ct. N.J. 1961), which dealt with the question
of how many members of the city council were required to make an appointment to fill a vacancy
on the city council, the court cited with approval, a New York case, which the court said:
In New York, the conception that there is a difference between the
act taken by a municipal council to fill a vacancy in an elective
office and other acts which are evidenced by ordinances and
resolutions has apparently existed for some time. Thus in
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Achley’s Case, 4 Abb.Pr. 35 (N.Y. Sup.Ct. 1856) it was held that
the mayor of New York did not have the power of veto over
appointments made by the common council under the charter of the
City of New York. In reaching this conclusion the court stated (4
Abb.Pr. At .37):
* * * it seems to me, that power of appointment is conferred by the
laws exclusively upon the Common Council, to be exercised by
them, irrespective of the concurrence or nonconcurrence of the
Mayor or other functionary. ‘The excise of the power of
appointment to office is purely an executive act; and when the
authority has been exercised, it is final for the term of the
appointment. [At 859]
There are also a significant number of cases in which the courts in other states have held
that the power of appointment by the mayor of persons to fill vacancies in positions outside of
the city’s governing body is not subject to the mayor’s veto. These cases also clearly stand for
the proposition that the same rule applies to vacancies on the city’s governing body. In
Stephenson v. Benton, 300 S.E.2d 803 (Ga. 1983), arising in our sister state of Georgia, the
question was whether the mayor could veto the city governing body’s appointment of the city
attorney. A statute gave the mayor the power to veto “ordinances, rules and resolutions,” and
the mayor argued that power extended to the election of the city attorney. [At 804] The court
rejected the mayor’s argument, reasoning that the city attorney’s appointment was characterized
by statute as an election. The City Charter does not characterize the filling of a vacancy in the
office of alderman as an “election,” but as I have pointed out above, Article 2, Section 1, the
board of mayor and aldermen “shall fill the vacancy [on the board] for the unexpired term.”
There is only a semantical difference between a city governing body’s “election” of a city
attorney and a city governing body’s selection or appointment of a person to fill a vacancy on the
city council.
The same result was reached with respect to the city council’s appointment, and the
mayor’s veto of the appointment of, a tax assessor in J. Ehrlich Realty Co. v. City of Dover, 124
A.2d 732 (Del. Ch. 1956), with respect to the city council’s appointment of a member of the
housing authority in O Keefe v. Dunn, 215 A.2d 66 (Super. Ct N.J.1965), with respect to street
commissioner, treasurer and city attorney in Chapman v. Bordelon, 132 So.2d 533 (Ct.App. La.
1961), with respect to a police justice, in Rich v. McLauren, 35 So. 337 ( Miss. 1903), and with
respect to two trustees in Wentzel v. May, 251 N.W.2d 529 (Minn. 1933).
Regardless of whether the mayor’s veto power is administrative, executive, or judicial
(which is not likely in Tennessee), the mayor has no right to veto a city governing body’s
appointments to fill vacancies on that board, unless that express and specific right is given to the
mayor in the charter or other state law. In the case of your City, the mayor does not have that
express and specific right in its charter or the general law.
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