State ex rel. Roberts on Information of McMullen v. Gruber

• Citation: 373 P.2d 657,231 Or. 494
• Parties: STATE of Oregon ex rel. Alvin ROBERTS, on the Information of A. R. McMULLEN, District Attorney for Lincoln County, Oregon, Respondents, v. Matthew GRUBER, Appellant. . Submitted on Appellant's Brief
• Decision Date: 16 May 1962
• Court: Oregon Supreme Court

Page 657

373 P.2d 657

231 Or. 494

STATE of Oregon ex rel. Alvin ROBERTS, on the Information of A. R. McMULLEN, District Attorney for Lincoln County, Oregon, Respondents, v. Matthew GRUBER, Appellant.

Supreme Court of Oregon, In Banc.

Submitted on Appellant's Brief May 16, 1962 Decided July 25, 1962.

Chris. J. Kowitz and William J. Juza, Salem, and Fred Allen, Newport, for appellant.

No appearance for respondents.

Orval Etter, Eugene, and Edward C. Harms, Jr., Springfield, filed brief as amici curiae on behalf of the League of Oregon Cities.

Before McALLISTER, C. J., and ROSSMAN, WARNER, SLOAN, O'CONNELL, GOODWIN, and LUSK, JJ.

LUSK, Justice.

Section 34 of the charter of the city of Toledo reads:

'Vacancies in elective offices of the City shall be filled by appointment by a majority of the entire membership of the council. * * *'

A member of the city council resigned and thereafter, according to a stipulation of the parties entered into in open court, the substance of which is recited in the findings of fact, 'at a meeting of the Common Council of the City of Toledo, held on August 21, 1961, there being four Councilmen then present by a vote of three Councilmen, one Councilman abstaining, appoint or attempt to appoint the defendant herein to fill a vacancy in said Council.' It was further stipulated that at the time of this meeting 'there were six elected, qualified and acting Councilmen on said Council.'

The defendant assumed the office and thereafter this quo warranto action was commenced, the plaintiff claiming that the defendant usurped and unlawfully exercised the office of councilman. The court so held and entered a judgment excluding the defendant from the office. Defendant appeals.

No appearance has been made in this court on behalf of the plaintiff. The court acknowledges its indebtedness to counsel for the League of Oregon Cities for a brief filed amici curiae at the court's invitation.

The question presented in whether, as the defendant contends, the nonaction of one member of the council who abstained from voting is to be given the same effect as though he had voted in favor of the motion. If so, the motion carried by a majority of the six members of the council and the defendant was duly appointed.

The proposition upon which the defendant relies is stated in his brief as follows:

'A member of the council who is present but abstains from voting on a question is regarded as voting with the majority.'

There is support for this proposition in some of the cases, though, as thus broadly stated, it scaracely warrants judicial approval. The correct rule stems from the decision of Lord Mansfield in the frequently cited case of Rex v. Foxcroft, also known as Oldknow v. Wainwright, 2 Burr. 1017, 97 Eng.Rep. 683 (K.B. 1760). The question in that case was whether one Seagrave had been elected to the office of town clerk of Nottingham. There was no statute or charter provision governing the case. The electors were the mayor, aldermen, and common council--25 in all. Of these, 21 appeared at the meeting; Mr. Seagrave was nominated; 9 voted for him; 12, protesting that there should be no election at all, refused to vote. The argument for Seagrave, as disclosed by the report of the case, was that 'silence is not a negative, either express or implied; and as no other person was proposed, and 9 voted for him, and none against him, he was well elected.' To this argument it was answered: 'Eleven formally protested against it [holding an election]: which is certainly voting against Seagrave's election.' Lord Mansfield's decision was in one sentence as follows: 'Whenever electors are present, and do not vote at all, (as they have done here,) 'they virtually acquiesce in the election made by those who do.''

The rule to be derived from this decision is stated in Willcock on Municipal Corporations § 546 as follows:

'After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting; because their presence suffices to constitute the elective body, and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote. And such an election is valid, although the majority of those whose presence is necessary to the assembly protest against any election at that time, or even the election of the individual who has the majority of votes: the only manner in which they can effectually prevent his election is by voting for some other qualified person.'

Identical language is found in Angell & Ames on Corporations (11th ed.) § 127. See, also, Launtz v. People ex rel., 113 Ill. 137, 55 Am.Rep. 405; Commonwealth ex rel. Moulds v. Fleming, 23 Pa.Super. 404; Somers v. City of Bridgeport, 60 Conn. 521, 22 A. 1015; Babyak v. Alten, 106 Ohio App. 191, 154 N.E.2d 14; Attorney General v. Shepard, 62 N.H. 383, 13 Am.St.Rep. 576.

In some of the cases it is stated that members not voting are deemed to have acquiesced in the action of a majority of a quorum. See Martin v. Ballinger, 25 Cal.App.2d 435, 77 P.2d 888; Rushville Gas Company v. City of Rushville, 121 Ind. 206, 23 N.E. 72, 6 L.R.A. 315, 16 Am.St.Rep. 388; Murdoch v. Strange, 99 Md. 89, 57 A. 628, 3 Ann.Cas. 66.

In Clark v. City Council of Waltham, 328 Mass. 40, 101 N.E.2d 369, it appeared that 10 of 11 councilors were present at a meeting where confirmation of appointment of a city official by the mayor was acted upon. Four councilors voted in favor of confirmation, one against it, and five did not vote. The court sustained the action, saying:

'In the absence of statutory restriction the general rule is that a majority of a council or board is a quorum and a majority of the quorum can act.'

This is the rule in numerous jurisdictions, 62 C.J.S. Municipal Corporations § 404, p. 765, though in some the concurrence of those voting, a quorum being present, is sufficient. Id. 766; Attorney General v. Shepard, supra. The latter rule (without, of course, the requirement of a quorum) prevails in popular elections. Haines v. City of Forest Grove, 54 Or. 443, 447, 103 P. 775. The reasons for refusing to apply it to elections by a body having a definite number are stated in Lawrence v. Ingersoll, 88 Tenn. 52, 12 S.W. 422, 6 L.R.A. 308, 17 Am.St.Rep. 870, a decision opposed to the weight of authority and which is not cited with approval.

Where, however, the statute requires

'* * * the affirmative action of a majority of the entire board or a majority of the members present, a refusal to vote may result in defeating the proposition because in such case affirmative action is required, and those who refuse to vote cannot be counted on the affirmative side under such a specific statutory requirement, and the proposal before the council may be defeated by lack of the affirmative majority required by the statute.' 2 Dillon, Municipal Corporations (5th ed.) 854, § 527.

See Commonwealth ex rel. Swartz v. Wickersham, 66 Pa. 134; Somers v. City of Bridgeport, supra, 60 Conn. at 529, 22 A. 1015; Murdoch v. Strange, supra, 99 Md. at 109, 57 A. 628; People ex rel. Floyd v. Conklin, 7 Hun 188 (N.Y.); Mayor and...