State Ex Rel. Hill v. Ponder

DeviN, J. Objections on constitutional grounds to the validity of chapter 341, Public-Local Laws 1931, and to the machinery therein prescribed for the election of a tax collector for Madison County, were considered by this Court in Freeman v. Comrs., 217 N. C., 209, 7 S. E. (2d), 354, and decided adversely to the appellant. The statutes creating a County Highway Commission and a Sinking Fund Commission for the county, as well as the statutory method ordained for the selection of a tax collector by the chairmen of these boards, together with the Chairman of the County Board of Education, and the Chairman of the Board of County Commissioners, acting ex officio, were held to be within the legislative power. McGuinn v. High Point, 219 N. C., 56, 13 S. E., (2d), 48; Freeman v. Comrs., supra; S. v. Jennette, 190 N. C., 96, 129 S. E., 184; Comrs. v. Bank, 181 N. C., 347, 107 S. E., 245; Jones v. Comrs. of Madison County, 137 N. C., 579, 50 S. E., 291. The wisdom and propriety of the statutes were matters resting in the discretion of the General Assembly. Lutterloh v. Fayetteville, 149 N. C., 65, 62 S. E., 758. In Freeman v. Comrs., supra, it was held that in accord with the provisions of chapter 341, Public-Local Laws 1931, the chairmen of the four designated local hoards were clothed with the exclusive power and authority to elect the tax collector for Madison County. Objection is now raised, however, on the ground that it has been established that one of the four electing chairmen was disqualified, and that therefore no valid election was or could be held. Hence, it is contended there was a vacancy in the office of tax collector which it was the duty of the Board of County Commissioners to fill. *62 This presents the question whether the absence or disqualification of one of the chairmen constituting the electing body deprives the remaining members of the power to act. A careful consideration of the legislative provisions, in view of the facts established by the verdict, leads us to the conclusion that it does not. The statute provides that the “tax manager shall be elected biennially by the chairmen of said boards.” By a similar provision in the statute relating to the office of auditor it was provided the latter should be elected “by a majority of the votes of tho chairmen.” It was found' by the jury that Buckner, Brown and Freeman were duly qualified chairmen of their respective boards, and that Teague, who had theretofore been chairman of the County Highway Commission was disqualified by his previous acceptance of another public office. Ho was not entitled to act or vote as a member of the electing body. Three of the four chairmen undoubtedly constituted a quorum, and two of the three were a majority thereof. It is a fundamental rule of parliamentary procedure, applicable as well to municipal and electing boards, that a majority of the members of a body consisting of a definite number constitutes a quorum for the transaction of business (Art. I sec. 5, Cons. U. S., Jefferson’s Manual, sec. 402), and it is equally well settled that a majority of the quorum has power to act. Stanford v. Ellington, 117 N. C., 158, 23 S. E., 250. This rule derives from the common law and is of universal application unless modified by statute or some controlling regulation or by-law in the particular instance. Stanford v. Ellington, supra; Comrs. v. Trust Co. 143 N. C., 110, 55 S. E., 442; Cotton Mills v. Comrs., 108 N. C., 678, 13 S. E., 271; 37 Am. Jur., 671-673; 46 C. J., 1378-1380; 43 C. J., 502; 13 Am. Jur., 522. “The voice of the majority decides; for the lex majoris partis is the law of all councils, elections, etc., where not otherwise expressly provided.” Jefferson’s Manual, sec. 501. It was established by the verdict that the defendant Ponder was duly elected at the meeting of the chairmen on 4 August, 1941. This was in accord with the uncontradicted evidence that three of the members of the electing body were duly qualified, present, and voting, and that defendant Ponder received a majority of the votes cast. It was found by the jury that defendant Ponder was the incumbent of the office on 4 August, 1941, by virtue of his previous election. Whether, under C. S., 3205, in the absence of a valid election, he would have been entitled to hold over until his successor was elected and qualified need not be decided, since it was determined by the verdict and judgment that Ponder was duly elected 4 August, 1941, for another term of two years. *63 Tbe fact tbat it was mistakenly reported to tbe County Commissioners that there was no election of a tax collector on 4 August, 1941, would not justify tbe election of defendant Rice, in view of tbe fact tbat two of tbe three qualified members of tbe electing body bad voted for defendant Ponder at tbe meeting duly held on tbe date fixed by tbe statute. Tbe exceptions noted by appellant to tbe judge’s charge cannot be sustained. Tbe material facts were not controverted. Tbe verdict and judgment are supported by tbe evidence, and must be upheld. In tbe trial we find No error.