Wooster v. Mullins

Baldwin, ’J. The main question in this case is whether the vote of the aldermen was a tie vote within the meaning of the city charter. The word tie, as applied to an appointment by election, signifies a state of equality between two or more competitors for the same position. Century Dictionary, in verb. The provision that two newspapers shall be designated by a vote in which no member of either branch of the Common Council shall vot'e for more than one, evidently contemplates the selection of one, and permits the selection of both, by the action of less than a majority of each board. “ In elections in which the principle of plurality is adopted, the candidate who has the highest number of votes is elected, although he may have received but a small part of the whole ; and, where several persons are voted for at the same time for the same office, those (not exceeding the number to be chosen) who have respectively the highest number of votes are elected. But, where two or more persons have equal numbers of votes, there is no election, and a new trial must take place, unless so'me other mode of determining the question is provided by law. In some of the States, where the votes are thus divided, the returning officers are authorized to decide between them, and to return which they please; but, unless thus expressly authorized by law, the returning officers have no casting vote.” Cushing on the Law and Practice of Legislative Assemblies, § 118. “ By a casting vote is meant one which is given when the assembly is equally divided, and when the question pending is in such a situation that a vote more on either side will cast the preponderance on that side, and decide the question accordingly; and not merely a vote which, if given on one side, will produce an equal division of the assembly, and thereby prevent the other side from prevailing. This principle extends to cases of election by ballot. In these cases the speaker does not vote by ballot, but waits until the votes are reported,, and then votes orally, not for whom he pleases, but for one, or [343] for the requisite number, of the candidates voted for, who have received an equal number of votes. This principle applies equally in those cases where a less number than a majority is permitted, or a greater is required, to decide a question in the affirmative. Thus, if one third only is permitted or required, and the assembly, on a division, stands exactly one third to two thirds, there is then occasion for the giving of a casting vote, because the presiding officer can then, by giving his vote, decide the question either way.” Ibid., § 306. ' An apt illustration of this method of procedure, as applied to cases of more than two contestants for the same position, is afforded by the practice of balloting for select committees in the British House of Commons. “ The majority necessary to an election is not an absolute majority of all the persons voting, but only a plurality; and if there are several persons, who all have the same number of votes, and the whole would make more than the number fixed for the committee, the speaker gives a casting vote for the election of the requisite number.” Cushing’s Law and Practice of Legislative Assemblies, § 1882. A tie is that which is tied. It is a knot; and when provision is made, in regulating legislative procedure, for a casting vote by the presiding officer in case of a tie, the object is to allow him to untie this knot. The charter of Bridgeport evidently looks to the designation of the two official newspapers by one and the same vote, each member of the respective boards voting for one alone. The mayor is a component part of the Common Council, but he is not a member of either of the two branches or boards, which with him constitute that body. He is therefore not forbidden, in the selection of the official newspapers, to vote for more than one of these. The ballot taken by the aldermen, resulting in four votes for each of three different newspapers presented the case of a tie, and to dissolve it the mayor’s easting vote was properly and necessarily given for two of them; for the charter required the simultaneous designation of two. It [344] follows that the demurrer to the complaint was properly sustained. There is no error in the judgment appealed from. In this opinion Torrance and Fenn, Js., concurred; Andrews, C. J., and Hamersley, J., dissented.