City of Haven v. Gregg
| Decision Date | 09 December 1988 |
| Docket Number | No. 62312,62312 |
| Citation | 244 Kan. 117,766 P.2d 143 |
| Parties | CITY OF HAVEN, Kansas, Appellant, v. Donald GREGG, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Kansas follows the common-law rule that a member of a public body who abstains from voting is counted as voting with the majority, or at least as acquiescing in its action, unless the common law has been modified by statutory law.
2. K.S.A. 12-3002 provides that no city ordinance shall be valid unless a majority of all the members-elect of the council votes in favor thereof and has thereby modified the common law that an abstention counts as an affirmative vote.
Larry A. Bolton, of Gottschalk, Bolton, Kibbe & Whiteman, Hutchinson, was on the brief for appellant.
There was no appearance by appellee.
Appellant, the City of Haven, Kansas, appeals a ruling of the district court of Reno County holding Municipal Ordinance No. 457 was invalid because a majority of the city council had failed to vote for its passage as required by K.S.A. 12-3002.
On September 2, 1987, the chief of police of the City of Haven, (City) issued a complaint against Donald Gregg for violating Ordinance No. 457, which prohibits the sale or service of alcoholic liquor without obtaining a city license. Gregg entered a plea of no contest and a finding of guilty was entered by the municipal court judge. Gregg appealed to the district court of Reno County, claiming that because a majority of the elected members of the city council had not voted for the passage of the ordinance as required by K.S.A. 12-3002, Ordinance No. 457 was invalid.
During the district court trial, two witnesses testified. The chief of police testified that on the night the city council passed Ordinance No. 457, the mayor was absent and only four of the five elected city councilmen were present. When the ordinance was approved by the council, only two of the three members voted: two voted in favor of the ordinance, one member abstained and the member acting as mayor did not vote. The city clerk testified that three members voted for passage of the ordinance, but admitted that her minutes of the August 3, 1987, meeting merely reflected that the motion to pass the ordinance "carried." As there was no breakdown of the "yeas" and "nays" in the minutes as required by K.S.A. 12-3002, the minutes of the meeting did not reflect an abstention, nor did the city clerk recall one. The city clerk also testified that, at the next council meeting, the minutes of the August meeting were read and approved without change or correction by the four council members present, three of whom had been present at the August meeting. The ordinance was regularly published in the official city newspaper on August 20, 1987.
At the close of the case, defendant moved to dismiss on the basis that Ordinance No. 457 was invalid since it had not been passed by a majority of the elected city council members. In a memorandum opinion, the district court determined one council member had abstained and only two members of the council had voted in favor of the ordinance. The district court then declared the ordinance invalid because a majority of the members-elect of the city council had failed to vote for its passage. The City appeals.
The Kansas Ordinances of Cities Act, K.S.A. 12-3001 et seq., sets out the procedure for consideration of an ordinance by a city governing body and the votes needed for final passage. However, the Act does not address the effect of an abstention upon the majority vote required for passage. K.S.A. 12-3002 provides:
(Emphasis added.)
There is a presumption that a city government has complied with the law in passing an ordinance. In Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, Syl. p 1, 311 P.2d 1004 (1957), we stated:
"Where an ordinance which has been regularly passed by a city council and approved by the mayor is offered in evidence, and the validity of such ordinance depends upon the existence of one or more facts at the time of the enactment thereof, the existence, and not the non-existence, of the necessary facts to sustain the validity of the ordinance should be presumed in the absence of evidence to the contrary."
See State, ex rel., v. City of Atchison, 92 Kan. 431, 140 P. 873 (1914).
Further, the presumption that a city complied with the law in passing an ordinance must be overcome by clear and convincing evidence. State, ex rel., v. City of Hutchinson, 109 Kan. 484, 487, 207 P. 440 (1921). To be clear and convincing, evidence should be clear in the sense that it is certain, plain to the understanding, unambiguous, and convincing in the sense that it is so reasonable and persuasive as to make it believable.
The City argues that the defendant failed to overcome the presumption of regularity which attaches to the council's action and failed to establish by clear and convincing evidence that the passage of the ordinance was invalid. Essentially, the City argues that since the city clerk testified she did not recall a council member abstaining from voting and the minutes of the council meeting reflect that the ordinance "carried," the trial court should have accepted this as conclusive proof of proper passage.
In prior Kansas cases, parties attacking the validity of an ordinance have failed because they presented no evidence to overcome the presumption of the validity of the ordinance. Here, there was conflicting evidence. The police chief testified that two of the members voted to pass the ordinance and one member of the council abstained. The city clerk testified that three members of the council voted for passage of the ordinance. After hearing this evidence, the trial court found that only two council members voted to pass the ordinance and one abstained from voting.
Factual findings of the trial court will not be disturbed on appeal as long as they are supported by substantial evidence. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. See Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988). There is substantial competent evidence which supported the trial court's finding. In addition to the chief of police's testimony, the city clerk stated she failed to properly record the individual votes of the members as required by K.S.A. 12-3002. Therefore, the minutes cannot be conclusive proof that the ordinance was validly passed.
Because substantial competent evidence supported the trial court's finding, we now must determine whether the court's finding that the ordinance was invalid because a majority of the council members failed to vote for its passage is correct. The City argues that Kansas follows the common-law rule that an abstention is counted as a vote with the majority or at least as acquiescence in the majority vote and that Kansas has not modified the common-law rule by statute. If we follow the common-law rule which counts an abstention as an affirmative vote, the ordinance would be valid because three of the five elected members to the council would have voted for passage of the ordinance.
The common-law rule regarding abstentions evolved from a rule pertaining to elections announced by Lord Mansfield in Rex v. Foxcroft, 2 Burr. 1017, 1021, 97 Eng.Rep. 683 (1760): "Whenever electors are present, and don't vote at all, (as they have done here,) 'They virtually acquiesce in the election made by those who do.' " Rex v. Foxcroft concerned the appointment of the town clerk of Nottingham by the mayor, alderman, and common council. Of the 25 electors, 21 were present, nine voted in favor of the appointment, and 12 refused to vote. Numerous subsequent cases interpreted this language to mean that those who refuse to vote, or abstainers, are to be counted as voting with the majority. See Annot., 63 A.L.R.3d 1064, and cases cited therein. See generally 4...
To continue reading
Request your trial
-
Cal. Bldg. Indus. Ass'n v. State Water Res. Control Bd.
...voting on issue (1955) 43 A.L.R.2d 698, §§ 2-5, pp. 702-709; see also Streep v. Sample (Fla. 1956) 84 So.2d 586, 588; City of Haven v. Gregg (1988) 244 Kan. 117 ; Blood v. Beal (1905) 100 Me. 30 ; Scheipe v. Orlando (1999) 559 Pa. 112 ; State ex rel. Doyle v. Torrence (1958) 203 Tenn. 175 .......
-
Garcia v. Estate of Arribas
...spanning three centuries has recognized K.S.A. 77-109 and its predecessors as the law of Kansas. See, e.g., City of Haven v. Gregg, 244 Kan. 117, 122-23, 766 P.2d 143, 147 (1988); Jones v. Garrett, 192 Kan. 109, 113, 386 P.2d 194, 198 (1963); Stringer v. Calmes, 167 Kan. 278, 283, 205 P.2d ......
-
Merry v. Williams
...here the governing statute unambiguously requires an affirmative vote of" at least six members of the Commission. City of Haven v. Gregg, 244 Kan. 117, 766 P.2d 143, 147 (1988). An abstention is not an affirmative vote. We conclude that the language of the affirmative six-vote requirement i......
-
N. Natural Gas Co. v. Approximately 9117 Acres in Pratt
...K.S.A. § 55–1210's scheme for ownership of migrated storage gas, as construed by the Kansas Supreme Court. Cf. City of Haven v. Gregg, 244 Kan. 117, 122–23, 766 P.2d 143 (1988) (when a statute conflicts with the common law, the statute controls). See also Martin, Pringle, 289 Kan. at 791, 2......