Commonwealth v. Fleming

• Decision Date: 05 October 1903
• Docket Number: 124-1903
• Citation: 23 Pa.Super. 404
• Parties: Commonwealth ex rel. v. Fleming, Appellant
• Court: Pennsylvania Superior Court

23 Pa.Super. 404

Commonwealth ex rel. v. Fleming, Appellant

No. 124-1903

Superior Court of Pennsylvania

October 5, 1903

Argued May 11, 1903

Appeal by defendants, from order of C.P. Beaver Co.-1903, No. 12 discharging rule for mandamus in case of Commonwealth ex rel John Moulds v. Robert D. Fleming et al., Town Council of the Borough of Rochester.

Petition for mandamus.

On March 5, 1903, the court made the following order:

And now, March 5, 1903, upon petition of John Moulds, a rule is granted upon Robert D. Fleming, George F. Wehr, Howard S Marshall, W. F. Workman, John Black, John A. Weber, Charles B. Baldwin, E. E. Bentel, James T. Conlin, C.B. Scott and Frank Middlemass, town council of the borough of Rochester, to show cause why a mandamus should not issue, compelling said council to place the name of John Moulds upon the roll, allow him to take his seat in council, and in all respects exercise the rights and privileges of a member of said council during the term of his office. Returnable March 9, 1903, at ten o'clock A. M.

The respondents filed an answer to the petition.

In addition to the facts stated in the opinion of the Superior Court it appeared that at a meeting of the reorganized council on March 6, 1903, an election was had at which A. K. P. Wilson was elected to fill the alleged vacancy.

Testimony was taken under the petition and answer and the court in an opinion by Wilson, P. J., made the following order:

And now, April 13, 1903, the rule is made absolute, and it is ordered and directed that a peremptory mandamus issue forthwith against the defendants, the town council of the borough of Rochester, commanding them to place the name of the relator, John Moulds, upon the roll, to allow him to take his seat as a member of said town council and to exercise all the rights and privileges of a member of said body until the expiration of his term of office, unless removed therefrom by legal and proper means. Returnable April 20, 1903. The costs of this proceeding to be paid by the defendants.

Errors assigned were order of March 5, 1903, and order of April 13, 1903.

Affirmed.

George A. Baldwin and A. P. Marshall, with them J. H. Cunningham, for appellant, cited: Com v. Risser, 3 Pa.Super. 196.

Arthur E. Barnett, with him John M. Buchanan, for appellee, cited: Com. ex rel. v. Smith, 2 W.N.C. 611; Com. ex rel. v. Common Councils of Philadelphia, 23 Pa. C.C. 631; Cent. Dist. & Printing Tel. Co. v. Com., 114 Pa. 592; Long v. Springfield Water Co., 8 Del. Co. Rep. 151; Kerr v. Trego, 47 Pa. 292.

Before Rice, P. J., Beaver, Orlady, Smith, W. D. Porter, Morrison and Henderson, JJ.

OPINION

HENDERSON, J.

The borough of Rochester is organized under the general borough law of 1851 and its supplements. The borough council is composed of twelve members. The third section of the Act of April 3, 1851, P. L. 320, declares that a majority shall constitute a quorum.

Under the provisions of section 4 of the Act of June 1, 1883, P. L. 54, town councils are authorized to fill vacancies which may occur in the council by death, resignation, or removal from the borough, or otherwise.

A vacancy occurred in the council of the borough of Rochester caused by the removal of a member thereof from the first to the second ward in the borough. Regular meetings of the council were held semimonthly, and, at the session held February 16, 1903, the meeting was adjourned to meet Friday evening, February 27. At the last named date the council met and a motion was offered declaring the seat of John A. Miller vacant by reason of his removal from the ward, and that the council proceed to elect a member to fill the vacancy. This motion was carried, six members voting in the affirmative and none in the negative. Afterward at the same meeting John Moulds and John W. Dowell were nominated for election to fill the vacancy, and on the first ballot John Moulds received five votes and John W. Dowell two votes, whereupon the president of the council declared Mr. Moulds elected. The meeting at which this action was had was the last meeting of the council for that year. The new council met for organization March 2, at which meeting a resolution was passed declaring that a vacancy existed in the council by reason of the removal of John A. Miller from his ward, and that no one had been legally appointed or elected to fill the vacancy, and that no person claiming to be elected to fill the vacancy should be recognized as a member of the body, and thereafter John Moulds was not permitted to take part in its deliberations. Because of this action he instituted the proceeding brought up for review in this case.

Upon the face of the records of the council the election of Moulds appears to have been regular. It is objected, however, by the appellants that it was invalid for two reasons: first, because he did not receive the requisite number of votes, and second, because an election could not be lawfully held at the meeting at which he was voted for. It is alleged in the answer filed by the appellants in the court below that there were ten members present at the meeting at which the election was held, and that three of the members did not vote for any candidate, and the appellants now contend that inasmuch as ten members of the council were present and that only five voted for Moulds, he was not lawfully elected to fill the vacancy. We are unable to concur in this view of the case. It is conceded that a quorum of the council was present at the meeting when the vote was taken on the election of a member to fill the vacancy, and that a majority voted upon that subject. The resolution to proceed to an election to fill the vacancy was carried not only by a majority of the quorum but by a majority of the whole body. A quorum being present, this was authorized to transact any business which might lawfully come before the body in the absence of special limitations or restrictions upon that power. It is a rule of the common law and generally of all parliamentary bodies that when a quorum is present the act of a majority of the quorum is the act of the body: 2 Kent's Com. 293; Buell v. Buckingham, 16 Iowa 284; 2 Cook's Corp. sec. 713 a ; 1 Dillon on Municipal Corp. secs. 216, 217; United States v. Ballin, 144 U.S. 1 (12 S.Ct. 507, 36 L.Ed. 321).

The election...