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014 443 684 2 
 
204 
 M3 U3 
 opy 1 
 
 MESSAGES 
 
 OF 
 
 J. Gr. BEEEET, MAYOE, 
 
 VETOING 
 
 "AN ACT AUTHORIZING THE ERECTION OF A MARKET-HOUSE IN THE SEVENTH WARD," 
 
 AND 
 
 "AN ACT FOR SUPPLYING THE WASHINGTON ASYLUM WITH WATER, AND TO 
 PROTECT IT AGAINST LIGHTNING;" 
 
 ALSO 
 
 '•AM ACT REGULATING THE DISTRIBUTION OF POTOMAC WATER THROUGHOUT THE 
 CITY OF WASHINGTON :" 
 
 TOGETHER WITH THE 
 
 OPINIONS OF J. M. CARLISLE, CORPORATION ATTORNEY, THEREON. 
 
 Mayor's Office, 
 Washington City, May 2, 1859. 
 
 Gentlemen : Herewith I return to the Board of Aldermen, in 
 which they severally originated, two ordinances entitled respectively, 
 "An act authorizing the erection of a market-house in the Seventh 
 Ward," and "An act for supplying the Washington Asylum with 
 water, and to protect it against lightning;" which ordinances I 
 cannot approve, for the reasons which I now proceed to state. 
 
 Certain propositions may, in the first place, be stated as self-evident. 
 The Charter of our city has provided us with a government, in which 
 the legislative and executive functions — the power to make the laws 
 and the duty to see them properly executed — are clearly separated 
 and defined. This distinction, so easily to be detected and of such 
 vital importance to the perfect accomplishment of the end of the 
 Charter, it is our plain duty scrupulously to observe and respect. 
 We have, indeed, no legal power to act, or to bind in any manner 
 the people of this city, in their persons or property, otherwise than 
 in accordance with these clearly-defined and fundamental principles 
 of the organic law. 
 
 If, then, it shall be found, upon a careful consideration of these 
 ordinances, that they are repugnant to these fundamental truths, 
 you will, I feel confident, agree with me that they cannot become 
 the law. I am aware that they are not wholly without precedent ; 
 but it is equally certain that, whatever examples of such legislation 
 are to be found in our municipal history, they have no other au- 
 thority than that which may belong to them as measures adopted 
 without any attention having, at the time, been drawn to the objec- 
 tion now made ; and persuaded, as I am, that this objection is rad;l 
 
 T. MeGn.L, Printer. 
 
Fz*4 
 
 MSW3 
 
 cal and insuperable, I cannot reconcile it to my sense of duty to 
 recognise any such precedents. 
 
 • The " act authorizing the erection of a market-house in the Sev- 
 enth Ward," not only authorizes that work, giving directions as to 
 its location and plan, and making the nedessary appropriation of 
 money for that purpose, but by its second section it proceeds to 
 make provision for the execution of the law in a manner wholly 
 inconsistent with the office and duty of the Mayor. In fact, it pro- 
 poses to reduce that office and duty to a mere cypher in this partic- 
 ular matter. Its scheme is to make the Mayor one of a body of 
 three, created for this occasion, to execute, or cause to be executed, 
 a law of this Corporation. And this triumvirate, unknown to the 
 letter or spirit of the Charter, has the additional objection that the 
 majority is to be composed of the representatives of the two Boards 
 which compose the legislative branch, acting in their capacity of 
 members of each Board respectively ; thus directly intruding the 
 legislative into the executive province, and attempting to over- 
 shadow and control the Mayor in the performance of those duties 
 for the discharge of which the people of this city have been pleased 
 to elect him, while they have elected the members of the two Boards 
 for another and a very different purpose. In matters of principle 
 it is perfectly legitimate, and sometimes indispensable, to compare 
 things which are widely different in magnitude and degree ; and I 
 therefore put this case to you : suppose an act of Congress were 
 proposed authorizing and directing any public contract to be made, 
 and undertaking to prescribe the execution of the law by a com- 
 mittee composed of the President of the United States and one 
 member of each House of Congress ; would any man, except the 
 author of such a bill, hesitate to pronounce it unconstitutional ? 
 Could any person charged, by his election and his oath, with the 
 executive duty — feeling the responsibilities of the first, and having 
 a due comprehension of the latter — give his assent to an act which, 
 while infringing upon the prerogatives of his office, disturbed the 
 balances, of the fundamental law ? And yet, in principle, there is 
 no difference between that case and this. It is perfectly well known 
 to every intelligent reader of the city charter that our municipal 
 government, in all that concerns the present question, is a miniature 
 of the Federal Government, and the government of the States 
 generally. Indeed the same principle, it is believed, characterizes 
 all our municipal governments which have been framed with any de- 
 gree of care or foresight. It is one which does not commend itself 
 solely by dogma or precedent, but by enlightened reason and a pru- 
 dent regard to the public interest. It does not simply concern the 
 executive or legislative branch of the city government in any mere 
 •personal or official sense; it relates to our common constituency, 
 whose whole interest cannot be fully and perfectly protected, except 
 by jealously guarding that careful and necessary adjustment and 
 
balance of power which was intended to make each department, act- 
 ing in its appropriate sphere, a watch and a check on the other, and 
 which is clearly evaded by the peculiar provisions of the ordinance 
 in question. In the nature of things, the making of laws and the 
 execution of them ought to be placed in different hands. But, 
 whether this be so or not, it is clear, beyond any question, that 
 such has been the will and enactment of Congress in creating this 
 Corporation. In authoritive illustration, of this, no stronger case 
 can be put than that which was determined by the unanimous judg- 
 ment of the Circuit Court of this District, in pronouncing void the 
 provisions made for the execution of the laws generally, by police 
 magistrates elected by the two Boards, instead of being appointed 
 on the nomination of the Mayor, by and with the advice and consent 
 of the Board of Aldermen. 
 
 Under the provisions of the Charter the voters of this city have 
 intrusted to a majority of each of the Boards comprising the Coun- 
 cil, with the assent of the Mayor, or two-thirds of each without his 
 assent, the power of framing the laws ; while to the Mayor, and to 
 the Mayor alone, it has intrusted the power and duty of seeing that 
 they are faithfully executed ; and it is with a full sense of the respon- 
 sibility thus imposed upon me that I have solemnly sworn to dis- 
 charge that duty " to the best of my skill and judgment, without 
 favor or partiality." 
 
 While I hold this office, which the partiality of my fellow-citizens 
 has clothed me with, I can venture to assure you, gentlemen, that 
 it is my intention, and shall be my constant aim, to avoid the slight- 
 est invasion of your chartered rights and privileges. While I shall 
 be scrupulous in this regard, I shall be equally jealous (not on, my 
 own account, but in reference to the constituency I represent) that 
 the powers and prerogatives of the office I hold shall, so far as I 
 have the means of preventing it, be in like manner shielded from 
 invasion. Neither you nor any of my fellow-citizens can reason- 
 ably expect of me that I should place myself in tutelage, or suffer 
 my conduct to be controlled by voluntarily becoming one of a com- 
 mittee of three for the discharge of my duties. Whatever superior 
 wisdom or experience may reside in the two Boards, (which I do not 
 question,) we at least derive our powers from the same sources — 
 namely, the confidence of our fellow-citizens and the Charter of Con- 
 gress, and with a view to these alone are we to estimate our respect- 
 ive responsibilities. 
 
 I do not question the power of the Councils by an ordinance 
 which shall receive the approval of the Mayor, or be passed in the 
 prescribed mode, notwithstanding his veto, to direct the terras of 
 any contract, or to surround the making of any contract by all the 
 guards and restrictions which may be deemed advisable. This 
 would be the act of the whole Corporation, within its legitimate 
 sphere ; and it has the undeniable right to fix the terms and condi- 
 
tions upon which it will be bound by a contract. But I deny the 
 right to direct the execution of such an ordinance in the manner 
 proposed in the present case. 
 
 With regard to the " act for supplying the Washington Asylum 
 with water, and to protect it against lightning," the same principles 
 are applicable to the provision " for providing and putting up light- 
 ning rods." With respect to the recital therein contained, of a 
 contract heretofore made by the Mayor and joint committee for the 
 plumber's work of f&at building, I have to say that no such contract 
 was made by me ; and if it was made by my predecessor during the 
 execution of the work contracted for by Gilbert Cameron, I am not 
 prepared, without further information, to sanction an agreement 
 made with any other person, pending that contract, for extra or 
 additional work upon the building. 
 
 Considering the importance of the question touching the respect- 
 ive powers and duties of the Councils and the Mayor, and in view 
 of other pending measures involving the same question, I have 
 thought it proper to take the advice of the Attorney of the Corpo- 
 ration upon that subject, and have found his opinion to accord with 
 my own. 
 
 It is hardly necessary for me to say that it would give me plea- 
 sure to approve an ordinance for the erection of a market-house in 
 the Seventh ward, and to supply the Washington asylum with water, 
 and to protect it against lightning, framed in accordance with the 
 charter. 
 
 Very respectfully, 
 
 JAMES G. BERRET, Mayor. 
 
 Office of the Corporation Attorney, 
 
 Washington, May 5, 1859. 
 Hon. Jas. G. Berret, Mayor: 
 
 Sir : I have to acknowledge the receipt of a copy of the resolu- 
 tion of the Board of Aldermen, requesting to be furnished with the 
 opinion of the Corporation Attorney, alluded to in the message veto- 
 ing the "act for supplying the Washington Asylum with water," 
 &c, and the " act authorizing the erection of a market-house in 
 the Seventh Ward." 
 
 That opinion, though formed upon great consideration, was, as 
 you are aware, communicated to you verbally, and was not thought 
 necessary to be reduced to writing — your intention then being to 
 present the grounds fully in the message itself. 
 
 I have perused that paper very carefully, and do not perceive 
 that I can add anything to its contents to make my view of the 
 legal question more intelligible, or the reasons which support it 
 more satisfactory. 
 
 I am, sir, very respectfully, your obedient servant, 
 
 J. M. CARLISLE, Attorney, $c, £c. 
 
Mayor's Office, Washington, May 16, 1859. 
 To the Board of Aldermen : 
 
 Gentlemen : I regret to be obliged to return, as I now do, without 
 my approval, the ordinance entitled "An act regulating the distri- 
 bution of Potomac water throughout the city of Washington." 
 
 In obedience to the Charter, I proceed to state the reasons for 
 withholding my signature to this act. 
 
 In my message of the second instant the general principles gov- 
 erning my conduct upon questions concerning our -relative duties 
 and obligations under the Charter are sufficiently stated. I have 
 nothing to add or to retract in that behalf. It only remains for me 
 to call your attention to the application of those principles to the 
 matter in hand. 
 
 By the 12th section of this ordinance you propose that I shall 
 attend your meetings and witness the discharge by you of duties 
 which are, in their nature, incident to the office held by me. For 
 any purpose whatever, except the taking of my official oath as pre- 
 scribed by the Charter, I am not aware that it is' proper for me to 
 be present at a joint meeting of the two Boards, or at their meet- 
 ings severally. But for the particular purpose of giving a tacit 
 sanction to proceedings in which it is not possible that I can take 
 any part whatever, and which are to result in an "absolute" award 
 by you binding the Corporation to a contract, it seems to me that 
 my presence would be eminently improper. 
 
 The proposed ordinance directs that bids for the contracts which 
 it contemplates shall be made in duplicate, and "transmitted," one 
 copy to the President of the Board of Aldermen and one copy to 
 the President of the Board of Common Council." The Mayor is, 
 by the terms of the ordinance, apparently expected to be present ;' 
 but, in the event of his failure to attend, it is provided that the 
 contracts shall be absolutely awarded, "the Mayor being absent." 
 
 I am unable to perceive any possible ground upon which such a 
 course of proceeding can be reconciled with our respective func- 
 tions as defined by the Charter. In approving it I should, in my 
 judgment, assent to a complete extinguishment of the distinctive 
 duties of the Executive, and a practical obliteration of the bounda- 
 ries between us which Congress has thought it wise to erect. 
 
 I will only add that if any occasion can give peculiar claims upon 
 upon us for the most scrupulous attention to the will of Congress as 
 expressed in the Charter, it would seem to be the present, when we 
 are about to avail ourselves of so bountiful and munificent a gift. 
 
 Although I have not been embarrassed by doubts as to the true 
 construction of the Charter, so far as it relates generally to the 
 respective functions of trie Mayor and the two Boards, nor as to 
 what should be my course in this special' case, yet, in order to com- 
 
6 
 
 mead my action to the more favorable consideration of the Board, 
 with which, very much to my regret, I find myself compelled to 
 differ, I have requested the Corporation Attorney, who, by an act 
 of May 28, 1858, is made the legal adviser of the Mayor, to ex- 
 amine the particular question of disagreement and give me his 
 opinion thereon in writing. To that opinion, which I herewith 
 communicate, and which from the justly-deserved professional dis- 
 tinction of its author, it is hardly necessary for me to say is entitled 
 to your attentive consideration, I respectfully refer as containing 
 more at length the special grounds upon which I have felt myself 
 impelled to withhold my assent to the bill in question. 
 Very respectfully, 
 
 JAMES G. BERRET, Mayor. 
 
 Office of Corporation Attorney, 
 Washington, May 12, 1859. 
 Hon. J. G. Berret, Mayor : 
 
 Sir : In compliance with your request I have examined and con- 
 sidered the 12th section of the act " regulating the distribution of 
 Potomac water throughout the city of Washington" with a view to 
 the question whether the provisions of that section ate in conformity 
 with the Charter. 
 
 On a recent occasion it became my duty to express to you what 
 I entertain no doubt are the true principles of our city government 
 in respect of the relative functions of the Mayor and the two Boards. 
 These principles indeed are so obvious and so inseparable from the 
 very existence of that government, as it has been created and de- 
 fined by Congress, that 1 do not think any candid mind can seriously 
 dispute them. If they are found to be irksome or unsuited to the 
 exigencies of the times, or of any particular occasion, they are 
 nevertheless binding until the Charter shall have been essentially 
 and completely changed ; and its change can only be accomplished 
 by the power which brought the Corporation into existence in its 
 present form ; nor is it possible for any ingenuity to devise a plan 
 or scheme which shall disregard these principles, and practically 
 confound the legislative and executive duties, without a plain viola- 
 tion of the Charter. It has not been the pleasure of Congress to 
 intrust the government of the city to a single assembly, or to two 
 assemblies, but to a Corporation, composed of two Boards, different- 
 ly constituted and having in some respects distinct functions, and a 
 Mayor, who is not the agent or servant of the two Boards, but a 
 co-ordinate and independent branch of the government, having, 
 with a qualified participation in the making of the laws, the exclu- 
 sive duty of seeing to their faithful execution. It was from a regard 
 to these principles that .1 felt bound to advise you, in the regular 
 
fp 
 
 course of my official duty, that the two ordinances, referred to in 
 your message of the second instant, were not in conformity with 
 the Charter. 
 
 I am of opinion that the twelfth section of the Water Act is 
 liable to the same objection. Its whole scheme is (so far as I am 
 informed) an entire novelty in our city legislation. It has for its 
 object, not the making of a law to be executed in the usual way, 
 but the conversion of the two branches of the municipal legislature 
 into a sort of administrative board, to open and examine bids and 
 "award" contracts among the bidders, the Mayor being invited to 
 be present at that proceeding in some undefined, and to me not con- 
 ceivable, capacity, without any power under the Charter to partici- 
 pate at all in the business, or even to open his mouth by way of 
 making any observation upon it. It proposes that he shall per- 
 sonally attend the Councils in his capacity of Mayor, to see the 
 Presidents of the two Boards open the duplicate bids, which are to 
 be addressed to them respectively, and to witness the process of 
 "carefully examining and comparing all the received proposals;" 
 and, after he has performed this insignificant ceremony, " the said 
 City Council" shall "award, by ordinance of the Corporation, the 
 contracts absolutely to the lowest responsible bidder or bidders ;" 
 but "if from any cause the Mayor should fail to be present at the 
 said Joint meeting, that then and in that case the two Boards shall 
 proceed to make said aioard, the Mayor being absent ;" the "said 
 award" having been, by the immediately preceding clause of the 
 section, declared to be absolute, or, in other words, final and con- 
 clusive, vesting in the bidder so selected a legal and perfect right 
 against the Corporation. In my opinion, to sign such an ordinance 
 would be a formal and unwarrantable surrender of the independent 
 trust and duty which the Charter has imposed upon the office of 
 Mayor, and for the execution of which the people of this city have 
 been pleased to elect you. 
 
 I am, sir, very respectfully, your obedient servant, 
 
 J. M. CARLISLE, Attorney, £c. 
 
 Copy of section 12, above alluded to. 
 
 "Sec. 12. And be it enacted, That the Water Registrar, immediately after en- 
 tering upon the duties of his office, and annually, on or about the first day of Feb- 
 ruary, advertise for a period of from ten to thirty days in at least two daily news- 
 papers published in Washington having the largest subscription lists, inviting sealed 
 proposals in duplicate, to be transmitted one copy to the President of the Board of 
 Aldermen and one copy to the President of the Board of Common Council, for fur- 
 nishing, during the current year, delivered in this city, of all water mains, valves, 
 branches, bends, sleeves, caps, Corporation stops, fire-plug hydrants, and every 
 other article or thing required in distributing the water ; and also, after having di- 
 vided the city into districts by wards, or otherwise, for the trenching, laying of the 
 mains complete, inserting the valves, branches, and outlets ; erecting the fire-plug 
 hydrants ; filling, ramming, and leveling the ditches and excavations ; designating 
 the probable number of feet of main and size, and the quantity of every other 
 
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 014 443 684 2 
 
 article or thing enumerated required to be furnished or laid during the year ; and 
 naming a time when such sealed proposals will be opened in joint meeting of the 
 two Boards of the City Council. And all such proposals shall, at the time named 
 in such advertisements, be opened and read in the joint meeting of the two Boards 
 aforesaid and in the presence of the Mayor. All proposals for contracts shall be 
 for a sum certain as to the price to be paid or received ; and no proposition which 
 is not thus definite, or which contains any alternative condition or limitation as to 
 price, shall be entertained or acted upon. No more than 1 one proposal shall be 
 received from any one person for the same contract, and all the proposals of the 
 person offering more than one shall be rejected. And the said City Council shall, 
 after carefully examining and comparing all the received proposals as aforesaid, 
 award, by ordinance of the Corporation, the contracts absolutely to the lowest 
 responsible bidder or bidders: Provided, That if, from any cause, the Mayor should 
 fail to be present at the said joint meeting, that then and in that case the two 
 Boards shall proceed to make said award, the Mayor being absent. 
 
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