Gaskin v. Jones
| Decision Date | 12 January 1942 |
| Docket Number | 15353. |
| Parties | GASKINS v. JONES. BROWN et al. v. SAME. HANNA v. SAME. |
| Court | South Carolina Supreme Court |
Samuel Want, James S. Verner, and Sam Rogol, all of Darlington, for appellant.
Willcox Hardee, Houck & Wallace, of Florence, for respondents.
These three actions were tried together and relate to the office of County Manager for Florence County. The Governing Board of this County consists of six members who are empowered to employ or elect a County Manager. Respondent, F. F. Jones was duly elected to this office for the year 1940 and served in that capacity. On January 2, 1941, a regular meeting of the Board was held, at which appellant, John Hanna, claims that he was elected for the year 1941.
The first action is brought by a taxpayer and the second by three members of the Governing Board. In each of these actions it is sought to have the office declared vacant and to restrain respondent Jones from continuing to exercise the duties thereof. The third action is brought by Hanna, who claims to have been elected to the office, to have the office turned over to him.
By Act No. 835 of the Acts of 1932 (37 Statutes at Large 1441) a Governing Board for Florence County is established consisting of six members. Under this Act, as amended in 1935 (39 Statutes at Large 440), the members of the Board hold office for four years and "until their successors are nominated, appointed and qualified." It is further provided that said Board "shall employ a County Manager who shall hold office for a term of one year, who shall be subject to removal by the Governing Board at any time for just cause."
The questions presented are:
(1) Was appellant, Hanna, elected as County Manager for the year 1941?
(2) If not, did the office become vacant upon the expiration of the statutory term of Jones on December 31, 1940, or did he continue to hold over as an officer de facto?
The Circuit Judge held that Hanna was not elected and that Jones continued in office as an officer de facto. Appellants challenge these holdings by appropriate exceptions.
The two questions will be considered in the order stated.
On January 2, 1941, the Governing Board of Florence County convened in regular session at its office in the Court House at Florence with all members present. The meeting commenced around nine o'clock in the morning and continued in session until the late afternoon with the usual adjournment for lunch. A number of ballots were taken for the election of a County Manager and each resulted in three votes for Hanna and three for Jones. In other words, there was a consistent tie on every ballot and the same division existed in reference to other matters that came up which were related in any way to the election of county manager. The County Attorney, who occupied a non partisan position, acted as temporary chairman a part of the time, but relinquished the chair after several ballots were taken because "nothing seemed to have been accomplished." The County Attorney also advised the Board that Jones would remain as a de facto County Manager in the event there was no election.
Very little was done by the Board at the afternoon session. The members largely just "sat around." In fact, the record discloses that except for the election in controversy, the session would not have been an extended one. Throughout the day there appeared to be a hopeless deadlock on the question of election of a County Manager.
Shortly after five o'clock in the afternoon, a motion was made to adjourn which resulted in a tie, the supporters of Jones voting for it and those of Hanna against it. A motion was thereafter made to have the County Attorney get a Court order for the County Treasurer to pay the 1940 claims. This motion likewise resulted in a tie. The three members who had voted for Jones thereupon withdrew from the meeting and retired. There is abundant testimony to the effect that these three members left because they were satisfied that nothing could be accomplished by continuing in session and the situation looked like it was going to develop into an endurance contest.
The three remaining members, who had voted for Hanna, continued in session and unanimously voted for Hanna as County Manager. These three members adjourned shortly after six o'clock.
When the three remaining members undertook to go into the election of County Manager, they made some attempt to get in touch with the three members who had withdrawn. However, they were able to get in touch with only one, who was still in the Court House but declined to return. The other two had left the Court House and were not reached.
The learned Circuit Judge found as a fact that at the time of the alleged election of Hanna one had been away five or ten minutes and the remaining two approximately an hour. He further found from the evidence "that at the time of the attempted election of Mr. Hanna the only members of the Board present were those shown by the minutes; and that the other three were neither actually or constructively present, and hence there was no quorum." The evidence fully sustains these findings of fact.
The following rules, applicable to the proceedings of a body of this kind, are well established:
In the absence of any statutory or other controlling provision, the common law rule to the effect that a majority of a whole body is necessary to constitute a quorum applies, and no valid act can be done in the absence of a quorum. A majority of such a body must be present to constitute a Board competent to transact business. If a quorum is present, a majority of a quorum is sufficient to act and bind the entire body. State v. Deliesseline, 1 McCord 52; Dillon on Municipal Corporations, 5th Edition, Volume 2, Section 521; McQuillin on Municipal Corporations, 2d Edition, Volume 2, Sections 624 and 628. The members who are present at a meeting cannot by a mere refusal to vote defeat the action of the majority of those voting. McQuillin on Municipal Corporations, 2d Edition, Section 628; Thompson on Corporations, 3rd Edition, Volume 2, Section 1256. The last mentioned rule is accurately stated as follows in Dillon on Municipal Corporations, 5th Edition, Section 527:
It is contended by appellants that under the last mentioned principle, Hanna was elected. It is urged that the situation is the same as the failure of a member to vote when a quorum is present and that the unanimous vote of those who exercised their right to vote was binding on the others.
This principle, however, has no support in the evidence. The three members of the Board who favored Jones had left the room and, as found by the Circuit Judge, were neither actually nor constructively present.
The situation is different from that which prevailed in the Indiana case of State ex rel. Walden v. Vanosdal, 131 Ind. 388, 31 N.E. 79, 15 L.R.A. 832. In that case a regular meeting of six school trustees was held for the purpose of electing a County School Superintendent. The meeting convened at midday and continued in session until around midnight. After a number of ballots were taken, not resulting in an election, three of the members refused to act longer or take further part in the proceedings. There were a number of bystanders looking on and listening to the proceedings. These three members withdrew from the place where the balloting was being held into the crowd of spectators, but did not leave the room. The Court held that a quorum was not broken under these circumstances although three of the members refused to vote. It was further held that where the three remaining trustees cast their ballots for a person, such a person was duly elected and the other trustees would be treated as present and not voting. The Court said: ...
To continue reading
Request your trial