
    Reynolds et al. v. Baldwin, Recorder.
    The remedy by writ of quo warranto, authorised by the Code of Practice, is not confined to cases of usurpation of office only. It is also the proper remedy in case of the usurpation of a franchise, as where it is alleged that a party claims, without authority, to, exercise the rights, duties and privileges of an alderman. Act oí 17 February, 1805, s. 22. C. P. 789, 828, 867 to 871. The laws of this State do not recognize the distinction between the different kinds of usurpation known to the common law.
    The provision of art. 870 of the Code of Practice that, when the court shall, on a writ of quo wmranio, declare the person against whom it was issued not qualified to fill the place of which he performs the duties, it “shall direct the corporation to proceed toa new appointment,” means only that such an order shall be made when anew appointment is necessary.
    In the interpretation of statutes the intention of the lawgiver is to be deduced from a view of the whole, and of every part of the statute taken together. Where in the preamble, or in any particular clause, an expression is used not so large and extensive in its import as those used in other parts of the act, effect must bo given to tho larger expression. A statute should be so construed, if possible, that no clause, sentence, or word shall be superfluous, void, or insignificant.
    The division of laws establishing and regulating municipal corporations into organic and ordi * navy, is unknown in this State.
    
      In the country from which wo derivo our icloas on the subject of municipal corporations, the charters of cities wore, as their name implies, contracts, entered into between the corpora-tors on the one hand, and the king or feudal lord on the other, by which liberties or franchises were bartered for personal services or money. They were intended to be permanent, and could not bo lawfully taken away, being, in the true sense of the word, franchises* But the relation between our municipal corporations and the sovreign, is not the same.
    The laws enacted under the provision of the 23d sect, of the 6th art. of the State constitution of 18X2, establishing and regulating tho municipalities of New Orleans, are not contracts» bntordmaiy acts of legislation. The powers they confer are not franchises, in the original meaning of that word, but mandates only; and these laws may be repealed at pleasure, except so far as their repealmay affect rights acquired by third persons under them. They must be construed and applied, in all cases, like other laws.
    The 5th sect, of tho act of 17 February, 1805, and the 2d, 5th, and 8th sects, of the act of 8 March, 1836, inrelation to the powers of the recorders in the city of New Orleans, must be viewed as if they formed part of one and the same statute, and be so construed that no clauso, sentence or word, shall be superfluous, void or insignificant.
    Neither the second section of tho act of 8 March, 1836, nor any other law, authorizes the recorder of a municipality in the city of Now Orleans, to exorcise the rights and privileges of an alderman, by voting in fcho deliberations of the council where the members arc not equally divided,
    APPEAL from the District Court of the First District, Buchanan, J.
    
      Durant, for the plaintiffs.
    
      R. Hunt and Roselius, for the appellant.
    The act of 1805, incorporating the city of New Orleans, provided that, among other officiers of the city, there should be a recorder and fourteen aldermen, to be electod in the mode therein prescribed; that, the aldermen so chosen should form a council to be called “ the city council,” of which the recorder, for the time being, should ex officio be president, but that he should have no vote, except a casting voto; and that the said council should have power to govern the city and administer its affairs, and to make bye-laws and ordinances for the better government of its affairs, &c.
    It had often happened in the administration of the affairs of corporations, composed of an even number of voters, that salutary by-laws could not be made, and that the elections of necessary and proper officers could not be effected, in consequence of an equal division of voters. This had given rise to much confusion and various illegal devices, for the purpose of enabling corporations to act in such cases. See 6 Term Rep. f32, and the cases there cited. The legislature therefore provided in the charter of the city of New Orleans against sucha contingency. It made the recorder ex officio president of the council of fourteen aldermen; and vested in him the right, in case of an equal division among the aldermen, to give a casting vote.
    Before the division of the city into three municipalities, the recorder was an ■ officer of little importance. His chief duly was to preside over the council. In case of a vacancy in the office of recorder, or of his absence, or inability to discharge his duties, the council was authorized to choose one of their members as president pro tempore. No other provision was made to supply his place, or to impose his duties on a substitute; simply, because he had no other functions of importance to perform.
    In 1836, the city was divided into three municipalities: each municipality was vested with a government of its own. The number of aldermen was no longer fixed and limited; but it was made the duty of the several municipal councils to apportion the number of aldermen to which they might be respectively entitled, in the ratio of one alderman for every hundred voters residing therein. It was evident, therefore, that the number of aldermen would fluctuate from year to year, and no ono could say with certainty that the council of any ono of the municipalities, would consist of an even number; and the confusion attendant upon an equal division of votes among the aldermen not being likely to take place, there was no particular reason for continuing in the recorder the power of giving a casting vote only.
    In remodelling the charter of the city in 1836, the legislature deemed it expedient to make the recorder a component part of the municipal council. The 2d section of the act provides that each municipality shall be governed by a council composed of a recorder, and the aldermen elected by the wards within the limits thereof. The recorder was thus made a member of the council — a constituent, component part thereof, expressly authorized to participate equally with every other member in the government of the municipality and the administration of its affairs. The council can only govern the municipality and administer its affairs, by passing ordinances, making by-laws, electing officers, &c. These duties and powers can only be exercised by the council in the ordinary way' recognised by law, that is to say, by voting, so that the will of tho majority may be ascertained, for the “ lex majoris partis is the law of all councils, elections, &c., where not otherwise provided.” If, then, the recorder is to participate as a member of the council in passing by-laws and ordinances, in governing the municipality and administering its affairs, he must exercise the right to vote. The recorder and the aldermen derive the right to vote from tho same law. The right is conferred upon them, in the same section and in tho same words, as members of the “ council composed of a recorder and the aldermen.” It is admitted that the aldermen have a right to vote. It can not then be fairly denied that the recorder has also the right.
    But it is argued that, although the 2d section of the act, just quoted, makes the recorder apart of the council, another section of the same act establishes the contrary. The 5th sections declares that, each of said municipalities shall be governed and the affairs thereof administered, by a recorder and a counci¡ composed of aldermen. There is some difference in the language of the 2d and of the 5th section; but when properly understood, there is no opposition in the meaning of the two. The 2d section declares that the council shall be composed of a recorder and the aldermen. • The 5th section speaks of a recorder and a council composed of aldermen. But the latter, like the former section, provides that the municipality shall have its affairs administered by a recorder as well as by the aldermen. The recorder is made one of the governing officers, and one of those appointed to administer the affairs of the municipality by tho 5th, as well as by the 2d section.
    It is said that the recorder is not a member of tho council, because the act of 1840 (Bullard & Curry’s Dig. p. 132, s. 1,) says, “that the council of Municipality No; 2, of the city of New Orleans, shall in future be composed of twelve aldermen.” The most universal and effectual way of discovering the true meaning óf a law, is by considering the cause which induced the legislature to enact it. Prior to the passage of the act of 1840, referred to, the number of aider-men to which the council of the several municipalities were entitled, was apportioned in tho ratio of ono alderman for every hundred voters residing therein. Act of 1836, s. 6. In 1840 it was found that, from the immense increase of voters in New Orleans, this rule would make the council consist of a number of aldermen, quite too large for practical purposes. The legislature resolved, therefore, to abolish the rule, and accordingly enacted that the council of Municipality No. 2, should, iu futuro, be composed of twelve aldermon. Tho object of tlio law evidently was only to diminish and limit tho number of aldermen.
    Orymes, on the same side.
   Tho judgment of the court was pronounced by

Host, J.

After tho late elections in tho city of New Orleans, tho council of Municipality No. 2 met, Joshua Baldwin, recorder, iu tho chair, and thirteen aldermen, being a full board, in their seats. They transacted some bxisiness, and M. M. Reynolds, one of the aldermen, presented the following resolution, and moved its adoption:

“Resolved, That we now proceed to adopt rules for the governing of this council.”

The recorder decided this resolution to be out of order, and Reynolds appealed from his decision, and called for the yeas and nays on the question, “shall the decision of the chair be sustained.”

The yeas and nays were ordered, and when counted stood six yeas and seven nays; whereupon the recorder voted with the minority, assorting his right to do so under the 2d section of the act dividing the city into three municipalities, which makes, in his opinion, the recorder a component part of the council, and thus gives him, by implication, the powers of an alderman. By Ms voto, his decision was sustained.

The seven aldermen who voted in the negative, instituted proceedings in tho nature of a quo warranto, to test the legality of the vote given by the recorder, and, if it should be found illegal, to obtain an order forbidding him to exercise hereafter the rights, duties and privileges of an alderman.

The defendant came into court and excepted to the petition, writ and proceedings, on the ground that, it is not a case in which a writ of quo warranto can or ought to issue, there being no law to authorize tho issuing of such a writ in the premises; and, should his exception be overruled, he filed a general denial, and averred that he had confined himself within the duties, rights and privileges of a recorder, and had never usurped or exercised the rights, duties and privileges of an alderman. The court of the first instance having overruled tho exception of the defendant, and rendered judgment against him on tho merits, he appealed.

It is contended on the appeal that, the exception of the defendant was improperly overruled, because tbe writ of quo warranto, as authorized by the Code of Practice, can bo resorted to in cases of usurpation of office only, and because the defendant, so far from having usurped the office of alderman, has from the beginning disclaimed any title to that office,' or any intention to usurp or exerciso the rights, duties and privileges thereof, and simply considers it his right, in virtue of his own office, as recorder, to vote in the deliberations of the council.

The petition does not charge that the defendant has usurped the office of alderman, but that he has exercised, and claims, without authority, the power to exercise the rights, duties and privileges of an alderman. This is not, according to the technical distinctions of the common law, the usurpation of an office; it is the usurpation of a franchise.

“ Wrongfully and unjustly holding and presiding at a court of record of a borough, in the absence of the bailiffs, is not an usurpation of the office of bailiff, for the intruder may have thought it his right or his duty in virtue of his own office as recorder or town clerk; yet it is an usurpation of the office of a judge, or of theforanchise f holding the court, for which an information may be granted at common law.” Rex v. Williams, 1 Bur. 407. S. C. 2 Kenyon, 75.

In England there is a remedy at commonlaw, for both kinds of usurpation, by an information in the nature of a quo warranto, filed by the attorney general in tho court of King’s Bench; and, under tho statuto of Ann, tho court may besides authorize private persons to proceed in the samo mannor, in cases of usurpation of office.

This distinction in the various kinds of usurpation, does not exist under our laws. The 22d section of the act of 1805, establishing the Superior Court, provided as follows: “ The Superior Court shall have power to issue writs of quo warranto, procedendo, mandamus and prohibition, which writs shall preserve the forms, and be conducted according to the rules and regulations prescribed by the common law.”

Under this statute, a writ óf quo warranto was the proper remedy for both kinds of usurpation. The Code of Practice subsequently made provision for tho form and manner of proceeding; but we do not understand that it restricted the cases in which the writ could issue before. The only restriction is contained in that portion of article 868, which refers to offices conferred in tho name of tho Slato by tho Governor, with or without tho consent of tho Senate.

Article 828 defines tho writ of quo warranto to be, an order of which the object is to prevent anusurpation. This definition clearly embraces usurpation of franchises as well as of offices. The very case put by article 8G8, is the usurpation of a franchise. This mandate is only issued, says that article, fer the decision of disputes between parties, in relation to offices (fonclions, says the French side) in corporations, as when a person usurps the character of mayos- of a city. The character of mayor is not, technically speaking, an office, but a franchise. See also art! 789 of the Code of Practice.

It is truo that article 870 ordains that, if the judgment be against the defendant, the court shall direct the corporation to proceed to a new appointment; but tho legal construction of this article, taken in connection with those that precede it on the same subject matter, is, that such an order shall be made whon a new appointment is necessary. It is an exception to the general dispositions contained in the other articles, and does not limit them in any manner.

“ It is an established rule in the exposition of statutes that, the intention of the lawgiver is to bo deduced from a view of the whole and of every part of the statuto, taken and compared together. In construing acts of parliament, the courts aro not to look only at the language of the preamble, or of any particular clause. If they find in the preamble, or in any particular clause, an expression not so large and extensive in its import, as those used in other parts of the act, it is their duty to give effect to the larger expressions. Indeed a statute ought, upon tho whole, to be so construed, that, if it can be prevented, no clause, sentence or word should be superfluous, void or insignificant.” Per Lord Tenterden, Doe dem. Byioaler and Brandling, 7 B. and C. 643.—Rex v. Burckett, Hard. 344, 1 Shaw, 108. Dwarris on Statutes, p. 21.

The order to proceed to a new appointment, could not always be made, even in cases of usurpation of office. If, after a candidate for tho office of mayor had obtained a majority of the votes, his competitor should take tho oath of office, and attempt to exorcise the functions thereof, a writ of quo warranto would be the proper remedy against him; and yet the judgment rendered -in tho case could not order a new election.

We are satisfied that the exception was properly overruled.

On tho merits, the law of tho case is contained in the following sections of various acts of tho legislature.

The 5th section of the act of incorporation of tho city of New Orleans, approved on the 17th of February, 1805, provides “that the aldermen shall form a council to be called the city council, of which the recorder, for the time being, shall, ex-officio, be president, but shall have no vote except a casting vote, unless at such time as the council shall resolve itself into a committee of the whole.”

In 1836 the city was divided into three municipalities, by an act entitled “An act to amend the act entitled an act to incorporate the city of Now Orleans, approved Feb. 17th, 1805, and other acts amending the same.”

The 2d section of that act provides, “that each municipality shall be governed, and its affairs administered by a council, composed of a recorder, and the aldermen elected by the wards within the limits thereof.”

Section 5th of tho samo act says, “that each municipality shall be governedi and the affairs thereof administered, by a recorder, and council composed of aldermenand it provides for the timo and manner of their election.

Section 8th of the same act provides, “that the poioers and duties of recorders and aldermen shall be the same, within the limits of their respective municipalities, as they were before in the city of New Orleans.

By the 1st section of an act passed in 1840, it is ordained that, the council of Municipality No. 2 shall in future be composed of twelve aldermen.

It is not denied that, up to 1836, the recorder could not vote in the deliberations of tho council, and had only a casting vote; but it is contended that, by the 2d section of the act of that year, the recorder is made a component part of the council, and has the right to vote in all cases. It is further alleged that this last act being the organic law of Municipality No. 2, its provisions cannot be repealed by implication.

The act of 1836 does not purport to be an original organic law. Its very title, as we have already seen, negatives the idea; and its details and provisions clearly show that, it was nothing more than an amendment of the laws existing on the same subject before its passage.

The division of the laws Which establish and regulate municipal corporations into organic and ordinary, does not exist under our form of government. In the country from which we derive our ideas on the subject of municipal corporations, tho charters of cities were, as their name implies, contracts, entered into between the corporators on the one hand, and the king or feudal lord on the other, by which liberties and franchises were bartered for personal service or money. The fights and powers which those charters conferred, wore of the nature of those secured to the people at large by our constitutions. They were intended to be permanent, and could not be lawfully taken away; they were, in tho trae sense of the word, franchises. But the relation existing between our municipal corporations and tho sovereign, is not tho same; and it is strange that this fact should continuo to bo so obstinately overlooked by their officers.

The twenty-third section of tho general provisions of the old constitution ordained, that tho citizens of tho town of New Orleans “should have the right of appointing the several public officers necessary for the administration and the police of the said city, pursuant to tho mode of election prescribed by the legislature.” This provision constituted the municipal government of this city, a subordinate agency for purposes of police and good order. The laws which, under that provision, have established and regulate the municipalities, are not contracta; they aro ordinary acts of legislation. The powers they confer are no longer franchises, in tho original meaning of that word; they are nothing moro than mandates; and those laws may bo repealed at pleasure, except so far as their repeal may affect rights acquired by third persons under them. They aro all of the same nature, and must bo construed and applied in all cases like other laws.

The provisions of the different statutes already cited in relation to tho power of rocordcrs, must bo viewed as if they formed part of one and the same statute, and bo construed, as far as practicable, so that no clause, sentence, or word in them he super jluous, void, or insignificant^

The 5th section of the act of 1805 ordains that, except in cases when the council resolves itself into a eommitto of the whole, the recorder shall have no vote, except a casting vole. How has this express prohibition been repealed 1

Tho argument by which such a repeal is deduced from the 2d section of the act of 1836, violates every known rule of interpretation, and can hardly be considered as serious. That section says that the council shall be composed of a recorder and the aldermen; but it must be construed with reference to all the others in pari materia, found in tho different laws of the corporation. It is a declaratory law, granting no now power. As there is no deliberative assembly without a presiding officer, after the act of 1805 had provided that the recorder-should bo ex-ojficio president of the council, the council was in reality composed of a recorder and the aldermen; each exorcising the functions assigned to them by law. This is the legal intendment of the 2d section of the act of 1836, viewed with reference to tho other laws in pari materia. It is identical with that of the 5th section, and has been considered by every body so to be, sinco the passage of the act in which it is found.

The legislature was so careful to leave no room for doubt on this subject, that it provided by the 8th section that, the powers, duties and rights of recorders should remain the same as they xoere before. The 2d section was not intended to make any change in those powers ; and, if it should be conceded that the power claimed might at one time have been exercised under it by implication, that power was certainly taken away, in the same manner, by the act of 1840. The 2d section of the act of 1836 ordains that each municipality shall be governed, and its affairs administered by a council composed of a recorder and the aldermen. The 5th section of the same act provides that, each municipality shall be governed, and the affairs thereof administered, by a recorder and council cmnposed of aldermen; and by virtue of the 8th section, the powers and duties of recorders are to remain the same as they wore before. Under the construction which it suits the defendant to put upon the 2d section, those three dispositions cannot stand together, and the first, or the two last, must give way. The defendant contends that tho first ought to prevail; but the law is against him. “ If the latter part of a statute be repugnant to the former part thereof, it shall stand, and, so far as it is repugnant, be a repeal of the former part, because it was the last agreed to by tho makers of tho statute.” Dwarris on Statutes, p. 31, and the cases there cited.

If the act of 1840 had never boon passed — if tho 5th and 8th sections of the act of 1836 were not found in it, the 2d section of that act would not give to the defendant tho power he claims. The law does not favor repeals by implication, and “ when there is a difference in tho whole perviow of two statutes, apparently relating to the same object, the, former remains .in force.’’'’ Rex v. Downes, 3 T. R. p. 569. So that if tho 2d section of tho act of 1836 had stood alone, it would not have repealed any part of the 5th section of the act of 1805, and the powers of the roeorder would have remained the same as before. Wo could not view the different laws regulating the powers, rights and duties of recorders as one single statute, and give effect to all their provisions, as it is our duty to do, without coming to the conclusion that the defendant has no color of right to exercise the powers he claims.

The opinion of the court is unanimous, clear and decided, that the judgment must stand. Judgment, affirmed.  