Zeiler v. Central Railway Co.

Page, J., delivered the opinion of the Court. The appellant contends that the ordinance mentioned in the bill of complaint is null and void, because, . 1st. It did not pass the First Branch in conformity with law, because it was put upon its passage before it had been read twice upon two separate days, as required by the ninth joint standing rule then in full force and unsuspended ; and 2nd, it did not pass either branch legally, because the question as to authorizing the Central Railway Company to extend its railway “ over almost all of the streets named in the ordinance ’ ’ had been indefinitely postponed in the Second Branch at the same session of the council; and under the twentieth joint standing rule the same subject could not be again considered at such session by amendment or otherwise. These propositions involve the consideration of two questions : First, were the rules of procedure violated as stated; and second, if they were, did such violation, under all the circumstances of the case, operate to render the ordinance null and void? It is contended that the indefinite postponement of the “question as to authorizing it (the Central Railway Company) to .extend its railway over almost all of the streets named in the ordinance (mentioned in the bill), including Wolfe street,” precluded the possibility under the rules of passing the ordinance under consideration. The facts ate these: On the 18th May, 1896, the joint standing committee reported favorably to the Second Branch two ordinances ; one entitled “ An ordinance to authorize the Central Railway Company to lay it$ tracks on Wolfe — 319 — street, Aliceanna street and certain other streets in the city of Baltimore ” (this will be hereafter referred to as the “ Wolfe street ordinance);” the other, “An ordinance to authorize the Central Railway Company to lay its tracks on E. Lexington street in the city of Baltimore.” (This will be referred to as the “ Lexington street ordinance).” On the same day both were read and laid over under the rule. On the 25th May the Wolfe street ordinance was put upon its second reading. After several amendments were offered and voted on, it was moved and adopted that “ the further consideration of the report and ordinance be indefinitely postponed.” On the 8th of June the Lexington street ordinance having passed its second reading, -"came up again, the question then being upon its passage; and was amended by striking out all of the ordinance, as reported by the committee, after the words at the end of the first section, and inserting those provisions which the appellant contends are in fact the same subject as the Wolfe street ordinance. The rule alleged to have been thereby violated is as follows: “Rule 20. When a question shall have been indefinitely postponed, the same subject, whether originating in this or received from the other branch, shall not be acted on again or reconsidered during the session.” From the bare reading of this rule, it is clear that the indefinite postponement of a question precludes the further consideration of the subject to which the question must be referred during the entire session, whether it originated in the one branch or the other. What then was the subject under consideration upon which the vote of postponement operated ? It certainly needs no argument to show that no single feature of the Wolfe street ordinance can be separated from its context, and be properly regarded as the “ subject” under consideration. It is true that each item in the ordinance demanded of the members, as watchful guardians of the public welfare, a careful scrutiny. Whether the Central Company should be the donee of the franchise, whether the tracks ought to be permitted on each street — 320 — named, whether the terms and conditions upon which the privileges were to be granted, and many other matters demanded the careful attention of the council. But none of these taken separately can properly be regarded as the “subject” postponed. Such a construction would be too narrow, and would preclude the council from considering any other measure that contained any one or more of these features. Such new measure might be highly beneficial to the public, and taken in its entirety, wholly free from the objections of the original ordinance, and yet if it contained any feature common to both measures, the rule would have the effect of rendering the council wholly powerless. We think a more correct construction of this rule is that which prevents further action upon a subject or scheme which is substantially the same as that contained in the postponed ordinance. Now, is the scheme of the Wolfe street ordinance substantially the same as that of the Lexington street ordinance ? The donee of the franchise, it is true, in both, is the same; also the mode of propulsion ; and many of the streets in the one are mentioned in the other. But in its entirety the scheme of the Lexington street ordinance is wholly different from that contained in the Wolfe street ordinance. The Wolfe street ordinance authorized tracks from Aliceanna street to North avenue, along the streets named; but there is no provision requiring the company to connect the new tracks with its present system, or to furnish an outlet for its passengers, on a single fare, to the centre of the city. Without such provisions the new tracks would be but a local concern, and persons using the new .road could go no further than over its limits, unless by transferring and paying an additional fare. On the other hand, by the Lexington street ordinance, the company was required to lay its double tracks down Lexington street to Gay and connect its present system by a single track with the new system of tracks; and having thus provided for a continuous road, permission was granted to lay tracks on other streets opened and to be opened and paved. • Moreover there was a more efficient — 321 — protection of the public interests in the requirements for gutter-plates and grooved rails. There are other features by which the two bills may be distinguished, but what we have said is quite sufficient, we think, to substantially differentiate the two measures. Neither in respect to the privileges conferred on the company, nor in the methods by which the safety, convenience and general interests of the public are protected, nor in the essential features of the two schemes are the two bills alike. They present two entirely different propositions, having, it is true, some features in common, but in their substance and entirety wholly dissimilar. We are of opinion, therefore, there was no violation of the twentieth rule in the passage of the ordinance in question. Having thus passed the Second Branch, the Lexington street ordinance, amended as we have stated, came up for consideration in the First Branch on the eighth day of June. “ Mr. Allison moved a suspension of the rules to obtain a second reading.” The yeas and nays were called for, and fourteen members voted in the affirmative and six in the negative ; whereupon it was announced that “ two-thirds of the members having voted in the affirmative, the motion was declared adopted.” The appellants contend this decision was in violation of the ninth standing rule; which is as follows : “ Rule 9. Every ordinance or joint resolution, before being put on its passage, whether originating in this, or received from the other branch, shall have two readings on two separate days, unless two-thirds of the members of the branch shall by a vote otherwise direct; but simple resolutions of inquiry, &c., may at once be put on their passage.” It is insisted, that the “ two-thirds ” here mentioned means two-thirds of all the members of the branch ; that is, in this case, two-thirds of twenty-two members ; and if this be correct, the motion to suspend failed to receive the requisite vote. Attention is also called to rule fifteen to show, first, the rule cannot be “ suspended,” and second there is a distinction to be made between “ members of the branch ” and — 322 — “ members present,” which can only be gratified by construing the former term to mean “All the members of the branch.” Rule 15 is as follows : “ No standing rule of the branch shall be rescinded or changed without the assent of three-fourths of the members of the branch, and after one day’s notice shall have been given; but any standing rule may be suspended, upon the assent of three-fourths of the members present, except Rule IX.” But we do not deem it important to determine here what was meant by the use of these different terms; whether by the words “ members present,” it was intended to include all who were actually present, as distinguished from those voting. The question now before us must be determined by the proper meaning to be placed upon the words ‘ ‘ Members of the branch,” as used in the ninth rule. It is now well settled, that in all cases a majority of a legislative body is a quorum, entitled to act for the whole body, except where the power that creates it has otherwise directed. In United States v. Ballin, 144 U. S. 1,the Court said, “ Where a quorum is present the act of the majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations.’.’ There is no Act of the State of Maryland that prescribes what number shall constitute a quorum of either of the two Branches’ of the City Council. That is determined by the common law, which fixes the “majority as the legal body; ” and under the authority granted by the Legislature, to “ settle their rules of procedure,” there exists no power in either branch or both to fix a greater number. Heiskell v. Mayor and City Council, 65 Md. 152. In that case the Court defined a quorum to be, “that number of the body, which when assembled in their proper place, will enable them to transact their proper business; or in other words, that number that makes a lawful body and gives them power to pass.a law or ordinance.” It would — 323 — therefore seem to follow from this, that when “a branch,” or “the members of a branch,” are the words used, with nothing to qualify them, and in the absence of a clear intent to the contrary, they must be taken to mean that “ number of the body that makes a lawful body.” To construe the words “ two-thirds of the members of the branch,” as used in the ninth rule, to mean two-thirds of all the members, would be to fix a meaning upon them that would deprive the majority of their legal power to act. It would amount to declaring that a majority, constituting the lawful body, intended, by a rule of procedure, to take away from itself, under certain circumstances, the power it rightfully has to do the work it was assembled to do. We think, therefore, it would be anomalous to hold, that while a majority is competent to do business, a rule, made under a power to settle the “mode and manner” of conducting the business, should be construed in such a manner as to take away from it the power to do business at all, under certain circumstances. “Two-thirds of the members of the branch,” we are of opinion, means two-thirds of the members voting, not being less than a majority; and not two-thirds of all the members. This view is fully sustained by authority. In the case of the State v. McBride, 4 Mo. 308, the question was upon the adoption of an amendment of the Constitution. “Two-thirds of each house” was the vote necessary to ratify it. The question to be solved was, what was the meaning of the word “ House ” as used in the Constitution; did it mean all the members elected, or did it mean any number sufficient to constitute a quorum ? The Court held that the “ most common meaning of the word being, the number of members sufficient to constitute a quorum to do business,” a vote of two-thirds of those voting, being a quorum, was sufficient. So where the constitutional provision was, “The Legislature shall pass no Act of Incorporation unless with the assent of at least two-thirds of each House,” it was held the word “ House ” meant members present and doing business, being a quo — 324 — rum. Southworth v. Palmy, &c., R. R. Co., 2 Mich. 287. This case is cited, apparently with approval, in Cooley Const. Limitations, 141 (marg.); Warnack v. The City of Lafayette, 4 La. Ann. 419. In the case of Green v. Weller, 32 Miss. 700, it was held, that in matters connected with the organization of a body, the preservation of order, and the transaction of its ordinary business of legislation, the word “house” is synonymous with “ quorum” or “majority.” The Constitution of South Carolina provides that no law to create a public debt shall take effect until it has been passed “ by a vote of two-thirds of the members of each branch of the General Assembly, &c.” In construing this provision the Supreme Court of that State, in the case of Merhan, Bliss & Co. v. The Comptroller-General, 4 So. Car. 463, after stating that the Constitution fixed the quorum to be a majority, proceeded as follows : “ It (a quorum) is indeed for all legal purposes, as much the body to which it appertains, as if all the component parts were present. When, therefore, either branch of the General Assembly is spoken of, in the absence of a clear intent to the contrary, the quorum of such body must be understood as intended. It would follow that provisions ascertaining the mode in which the body should divide, in order to complete action in any given case, whether by a mere majority or by a still greater proportion, must be interpreted primarily as applicable to the body as legally organized at the time such action is taken. If the rule is the mere majority rule, then a majority of the quorum present and acting is intended; if the rule is that of two-thirds, then two-thirds of such quorum must concur for effective action.’-’ The motion made, was for “a suspension of the rules, in order to obtain a second reading.” This, we think, was passed by a two-thirds vote, and was sufficient to put the ordinance on its second reading. It is true, Rule 15 makes no provision for the suspension of Rule 9, but Rule 9 itself provides substantially that the branch, by a two-thirds vote, may direct when the ordinance or joint resolution may be — 325 — read. The motion, therefore, while it may possibly be ineffective to work a suspension of Rule 9, is quite sufficient to indicate a direction to put the ordinance on its second reading at once. (Decided November 19th, 1896). It follows from what we have said, that in our opinion, there have been no violations of the rules of the council; and it therefore is not important to this case to consider what, if there had been such violations, the effect would have been upon the validity of the ordinance in question. Decree affirmed.