Cromarty v. Leonard

• Decision Date: 31 May 1961
• Citation: 216 N.Y.S.2d 619,13 A.D.2d 275
• Parties: Application of Arthur M. CROMARTY, individually and as a member of the Board of Supervisors of Suffolk County, State of New York, Petitioner-Respondent, v. William LEONARD, Presiding Officer of the Board of Supervisors, and Edward H. L. Smith, Clerk, Appellants, David Zaron, Secretary Civil Service Commission, Fred Hose, Comptroller, Chester F. Jacobs, Treasurer, all of County of Suffolk, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 619

216 N.Y.S.2d 619

13 A.D.2d 275

Application of Arthur M. CROMARTY, individually and as a member of the Board of Supervisors of Suffolk County, State of New York, Petitioner-Respondent, v. William LEONARD, Presiding Officer of the Board of Supervisors, and Edward H. L. Smith, Clerk, Appellants David Zaron, Secretary Civil Service Commission, Fred Hose Comptroller, Chester F. Jacobs, Treasurer, all of County of Suffolk, Respondents.

Supreme Court, Appellate Division, Second Department.

May 31, 1961.

Reginald C. Smith, Riverhead, for appellants.

Eugene J. Blumberg, Amityville, for petitioner-respondent.

Before NOLAN, P. J., and BELDOCK, UGHETTA, KLEINFELD and BRENNAN, JJ.

NOLAN, Presiding Justice.

We are required on this appeal to determine, with respect to a Supervisor's abstention from voting on a resolution offered by a member of the Board of Supervisors of Suffolk County, whether the chairman or presiding officer of the Board has the power to record such abstention as a vote against the adoption of the resolution.

The essential facts are not in dispute.

Petitioner Cromarty is the Supervisor of Babylon Township in Suffolk County and, as such, sits on the Board of Supervisors with the Supervisors of nine other towns.

The Suffolk County Charter provides (L.1958, ch. 278, § 201) that the Board of Supervisors shall be the legislative and policy determining body of the County, and shall, except as otherwise expressly provided, have and exercise all the powers and duties of the County. It is authorized (§ 202) to exercise all powers of legislation provided in Article 9 of the State Constitution and in the charter; and it is charged with the duty, inter alia, of making appropriations and levying taxes for the purpose of carrying out the powers and duties imposed upon the County.

With respect to the office of County Attorney, the charter provides that there shall be a County Attorney who shall be appointed by the County Executive with the approval of the Board of Supervisors (§ 1501).

With respect to the functioning of the Board, the charter provides that each Supervisor shall have one vote; that a majority of the whole number of the members of the Board shall constitute a quorum; and that, except as otherwise provided by law, the 'local laws and resolutions shall be adopted by a vote of not less than a majority of the total membership of the board'; and that, at any Board meeting, in case of a tie vote on any matter (except with respect to matters specifically excluded) 'the county executive shall have a casting vote' (§ 203). To override the County Executive's disapproval of a local law or resolution, an affirmative vote by two-thirds or by a majority of the total membership of the Board is required depending on the circumstances as provided by the charter (§ 206).

The charter further provides that it must be liberally construed to effect its objects and purposes (§ 2307).

At the Board's organizational meeting on January 4, 1961, all ten members being present, appellant Leonard was elected as the presiding officer or chairman. The first resolution which fixed the time for the Board's regular meetings passed unanimously. Then, the County Executive submitted for the Board's approval the name of the person whom he proposed to appoint to the office of County Attorney.

A resolution was offered approving such appointment. The vote thereon was five in favor, four opposed, and one not voting. The one not voting was the petitioner Cromarty. Thereupon the chairman ruled that petitioner's abstention should be counted as a negative vote opposed to the adoption of the resolution; the chairman directed the Clerk of the Board so to record it; and the chairman further ruled that the County Executive had the power to cast and should cast the deciding vote. The County Executive then voted to approve his appointment of his nominee for the office of County Attorney, and the chairman announced that the resolution approving the appointment was carried.

At the same meeting another resolution creating, designating and abolishing certain positions in the county was offered. The vote again was five in favor, four opposed, with petitioner not voting. The chairman again made the same ruling, whereupon the County Executive voted in favor of the resolution.

It is alleged in the petition and admitted in the answer that the Board of Supervisors had never adopted any rules of order or procedure; that it was customary for Supervisors to abstain from voting; and that it had never been the custom to record such abstention as an affirmative or negative vote. Petitioner seeks: (a) to annul the ruling which vitalized his abstention into a negative vote and permitted the County Executive to cast his deciding vote; and (b) to prohibit the payment of any salary by virtue of the resolutions adopted as a result of such ruling.

The learned justice at Special Term held, in effect, that while there is no New York case precisely in point and that while the authorities in other jurisdictions are in hopeless conflict, the general principles announced in New York decisions require a holding that an abstention may not be counted as a negative vote so as to create a tie with the right to a casting vote by the County Executive. Accordingly, the justice granted the petition to annul the challenged resolutions.

Appellants, the chairman and Clerk of the Board, contend that an abstention must be counted as a vote; that the Justice at Special Term erred in holding that abstention and absence must be treated alike; and that petitioner, through the medium of his abstention, should not be permitted to frustrate the orderly processes of the Board of Supervisors and to exert more power than he would have had if he voted.

Petitioner, on the other hand, argues that there is nothing in any law or in any resolution of the Board which gives its presiding officer the power to record an abstention as either an affirmative or negative vote; that the presiding officer had no such power; and that there was, accordingly, no tie vote entitling the County Executive to a casting vote.

Both parties support their respective contentions with extensive citation of authority, mainly from other jurisdictions. But as the justice at Special Term stated, those authorities are in conflict and the decisions in this State have not directly passed upon the questions now presented. To refer in detail to all the cases cited would extend inordinately this discussion. Most of the cases are adverted to in the digests and textbooks on the subject (Ann. 40 A.L.R., pp. 808, et seq.; Ann. 43 A.L.R.2d, pp. 701, et seq.; 2 Dillon, Municipal Corporation (5th ed.), pp. 851, et seq.; 4 McQuillin, Municipal Corporations (3d ed.), pp. 478, et seq.; and 62 C.J.S. Municipal Corporations § 403, pp. 764, et seq.). Reference may be made, however, to some of the cases which are representative of each faction's contentions.

Appellants' position finds support in a Montana case (State ex rel. Young v. Yates, 19 Mont. 239, 47 P. 1004, 37 L.R.A. 205). The statute there involved required a majority vote of all members of the city council to confirm appointments of city officers. The mayor had the right to vote in case of a tie. At a meeting of the council, all eight members (or aldermen) being present, four voted in favor of confirmation, while four did not vote, whereupon the mayor voted in the affirmative. In holding that there had been a legal confirmation, the court said (19 Mont. at pages 242-244, 47 P. at pages 1005-1006):

'In the foregoing reasoning we have proceeded in part upon the hypothesis that the four aldermen who remained silent when their names were called to vote upon the question of confirmation were not only properly counted as present, but were also correctly regarded as voting in the negative, and so made a tie. Certainly the respondent cannot contend for any better position than is granted him by this assumption. It is an exploded notion that a member of a legislative body such as a city council can be present at a meeting, thus helping to make a quorum of the body, yet defeat the progress of legislation by refusing to vote when the roll is called. Experience has demonstrated that it is unreasonable to permit the physical [being] to be disunited from the official being under such circumstances. Such practice often-times might give to one member, and frequently to an attending minority, an opportunity to accomplish by silence what could not be done by speech, and often render presence, though inactive, more powerful than entire absence. The courts, as well as law writers and parliamentarians generally, have adopted the more rational rule that if a member of such a body join in making a quorum, and sit, his duty is to vote (unless excused for cause), and he will be counted as present whether or not he refuses to answer to the roll call. * * * There is some divergence, however, among the cases upon how to exactly construe the action of such a present member who refuses to vote. It was apparently held in the case of Launtz v. People , supra (decided in 1885), under a city charter which gave the mayor a right to vote only in a case of a tie, that if four out of the eight councilmen voted in the affirmative, and the other four, though present, refused to vote either way, the mayor might treat those not voting as opposed to those who had voted, and decide the matter by voting in the affirmative. But in the later case of Rushville Gas Co. v. City of Rushville, (121 Ind.Sup. 206) 23 N.E. 72, 6 L.R.A. 315, a somewhat different view was expressed, the court holding, after a review of cases, that the law is that the members present and not voting assented to the adoption of the matter then before the council. * * * We are inclined to the opinion that the proper rule is that those who remain silent shall be deemed to assent to the act of those who do vote. * * * If this be...