State ex rel. Cadmus v. Farr

The opinion of the court was delivered by Magie, J. By section 32 of the act incorporating the city of Bayonne, approved March 22d, 1872, (Pamph. L., p. 686,) it is provided that a majority of the board of councilmen shall constitute a quorum for the transaction, of business, and that the mayor may call a special meeting of that board upon a prescribed notice. By section 28 of the same act it is made the duty of that board to annually elect one of their number to be president of the board. The information filed in this case shows that on the last [215] Monday in April, 1885, said board consisted of ten councilmen ; that at a meeting held on that day and at another meeting held on May 5th, 1885, all the councilmen being present, the board attempted to elect a president, pursuant to the requirement of section 28; that many ballots were taken, all the councilmen voting, but no person received at any ballot more than five votes; that the board was convened on May 12th, 1885, by the call of the mayor, pursuant to section 32, and seven councilmen were in attendance, and resolved to proceed to business; that William C. Earr, the defendant, was nominated for president, and at one or more of the ballots then taken received five out of seven votes cast; that defendant claimed thereby to be elected, and then and at a subsequent meeting took the position and performed the duties of president. The information claims that six votes were requisite to elect a president, and that defendant, never having received but five, was not duly elected, but intrudes into the office. It calls on him to answer by what warrant he holds the office. Defendant demurred to the information, and now insists that the facts shown therein establish in him a perfect title to said office, and therefore he ought not to be required to further show his title. The information shows a legal meeting of the board, duly called and attended by a majority of the councilmen, who, by the express terms of the charter, constituted a quorum for the transaction of business. The annual election of one of their number to be president was business expressly required to be transacted. The quorum present was thei-efore capable of transacting that business. The only question presented is. whether the choice of a president could be made by a majority of those present or required a majority of the whole board. The information asserts that by the provisions of the act governing Bayonne, and by the laws, customs and usages of the state, a majority of the whole number of councilmen was requisite to an election of president. The twenty-eighth section, which prescribes the duty of [216] electing that officer, is silent as to the number of votes requisite to an election. Nor is there elsewhere in the act any express provision on the subject. Yet the legislature in this act clearly evinced an intention to require a vote of a definite number to validate certain acts. Thus, by section 35, which prescribes the appointment of other officers by the board, it is declared that the appointment must be made by a majority of the whole number of the members of the board, and if the appointment is not approved by the mayoi’, it can only be made by a vote of two-thirds of all the members elected. By sections 28 and 33 the expulsion or removal of members can only be effected by a voté of two-thirds of all the members elected. The section (28) which gives power to elect a president, also gives other powers, such as to appoint the time and place of meeting, to make rules and to pass ordinances, &c. By section 29 it is provided that ordinances and by-laws can only be passed when agreed to by a majority of the board, and if vetoed, only by two-thirds of all the members elected. By these provisions it appears that the legislative intent was to require a specified majority in certain cases. In other cases, in respect to which no rule was prescribed, it is clear the intent was to leave them to the general rule governing the action of corporate bodies. The general rule, in the absence of specific provision, is well settled, and is that when the body empowered to act consists of a definite number of individuals, a majority of that number will constitute a quorum for the transaction of business, and when duly met a majority of the quorum may act. The rule was thus stated in this court in McDermott v. Miller, 16 Vroom 251, and in State v. Paterson, 6 Vroom 190, and rests on a long line of authority from which I find no dissent. 2 Kent’s Com. *293; Ang. & A. on Corp., §§ 501-504; Dill, on Mun. Corp., § 216; 5 Dane’s Abr. 150; Rex v. Miller, 6 T. R. 268; Rex v. Bellringer, 4 T. R. 810; Rex v. Monday, Cowp. 530; Rex v. Varlo, Cowp. 250; Oldknow v. Wain-right, 1 W. Bl. 229; Gosling v. Veley, 7 Ad. & E (N. S.) [217] 406 ; Ex parte Willcocks, 7 Cow. 401; Lockwood, v. Mech. Nat. Bank, 9 R. I. 308 ; Buell v. Buckingham, 16 Iowa 284; Columbia, &c., Co. v. Meier, 39 Mo. 53; Sargent v. Webster, 13 Metc. 497; First Parish v. Stearns, 21 Pick. 148; State v. Green, 37 Ohio St. 227. Some of these cases construe the rule to validate the act of a quorum present, when passed by a mere majority of those voting, though such majority does not comprise the major part of those present, or even of a quorum. But the extent of the rule is not now in question. For, applying it in the most limited form to the facts of this case, the defendant’s election is demons'rated. There was a legal board of councilmen, capable of transacting this business, and no other rule being prescribed by the charter, the vote of a majority of those present given for defendant elected him. It was urged on the argument that the office claimed by defendant is excepted from the general rule. In support of this position we were referred to Cushing’s Law of Legislative Assemblies, §§ 297, 298. But the authority cited does not go to the length here contended for. The author states that the presiding officer of a deliberative body should possess the confidence of the body in the highest practicable degree, and so is required to be chosen by an absolute majority of votes. But it is plain from the context that Mr. Cushing is speaking merely of a usage of electing such officers by a majority rather than a plurality of votes. If this usage be anything more than the usual requirements of the law, and if it be an imperative rule, it has no application to the case in hand, for defendant was elected, not by a plurality, but by a majority of the votes cast. The demurrer must therefore be sustained.