Northwestern Bell Tel. Co. v. Board of Com'rs of City of Fargo

• Decision Date: 02 October 1973
• Docket Number: No. 8924,8924
• Citation: 211 N.W.2d 399,63 A.L.R.3d 1064
• Parties: NORTHWESTERN BELL TELEPHONE COMPANY, a corporation, Plaintiff and Appellee, v. The BOARD OF COMMISSIONERS OF the CITY OF FARGO, a North Dakota municipal corporation, et al., Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 399

211 N.W.2d 399

63 A.L.R.3d 1064

NORTHWESTERN BELL TELEPHONE COMPANY, a corporation Plaintiff and Appellee, v. The BOARD OF COMMISSIONERS OF the CITY OF FARGO, a North Dakota municipal corporation, et al., Defendants and Appellants.

Civ. No. 8924.

Supreme Court of North Dakota.

Oct. 2, 1973.

Syllabus by the Court

1. Where a five-member board voted on a proposed ordinance requiring for passage the concurrence of a majority of all members of the governing body, and two members passed their votes because of conflict of interest, and the remaining members voted two to one in favor of the ordinance, the passed votes must be counted with the majority, and the ordinance must be declared passed.

2. A finding of fact by a trial court that votes of members of a city commission were passed because of a conflict of interest is accepted by this court.

3. A conclusion of law (that an ordinance is not duly passed) is not fortified by the 'clearly erroneous' rule of Rule 52(a), N.D.R.Civ.P., applying to findings of fact.

4. The statutory requirement that an ordinance be passed by a majority of all the members of the governing body applies only to second reading and final passage, and not to first reading.

5. Where a statute requires the recording of votes by yeas and nays, it does not permit a member who is present to pass his vote or abstain from voting.

6. A member of a governing body, unless excused by law, has a duty to vote on matters before the body. If he does not vote, he is to be counted as voting with the majority of those voting.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for plaintiff and appellee.

Solberg & Stewart, Fargo, for defendants and appellants.

VOGEL, Judge.

The only question before us is the construction of Section 40--11--02, North Dakota Century Code (set forth in full, Infra), as applied to the peculiar facts presented by this case. Otherwise stated, we must decide whether Ordinance No. 1444 of the City of Fargo was passed. The controversy arises because Section 40--11--02 requires for the passage of a city ordinance that '. . . a majority of all of the members of the governing body must concur in the passage . . .' and upon the first reading of the ordinance two of the five members of the commission voted 'yea,' two were absent, and one 'passed' his vote, and upon second reading and final passage, two voted 'aye,' one 'nay,' and two 'passed' their votes.

The mayor (one of the commissioners, with a right to vote in all cases and whose vote in both instances was one of the two 'aye' votes), declared the ordinance passed.

The two commissioners who passed their votes upon second reading and final passage are employees of Northwestern Bell Telephone Company, and the ordinance in question places a two per cent tax on the gross revenues of Northwestern Bell Telephone Company in the city of Fargo. At the time of the first reading, one of the two employee-commissioners was absent and the other passed his vote.

Northwestern Bell Telephone Company commenced this action for an injunction to restrain enforcement of the ordinance on the ground that Section 40--11--02, N.D.C.C., requires the concurrence of three members of the city commission for passage of an ordinance and that Ordinance No. 1444 never had the concurrence of the three commissioners.

As we said, the sole issue is whether Ordinance No. 1444 was validly passed in view of the provisions of Section 40--11--02 N.D.C.C. Both parties agree that the ordinance is within the powers of the City of Fargo, which has adopted a Home Rule Charter under Chapter 40--05.1, N.D.C.C.

It is asserted by the City, and admitted for the purposes of this appeal by the plaintiff (hereinafter called 'Bell'), that the commissioners who were employed by Bell passed their votes because of a conflict of interest. The mayor so stated at the meeting at which they passed their votes, and the minutes indicate no denial by them. The lower court found as a fact that they passed their votes 'on the grounds that they were employees of the local telephone company.'

We accept this finding of fact as not 'clearly erroneous.' Rule 52(a), N.D.R.Civ.P. The argument before us relates to the lower court's conclusion of law 'That Fargo City Ordinance No. 1444 is invalid in that Section 40--11--02 of the North Dakota Century Code requires a minimum of three affirmative votes for the passage of any ordinance; and that this Ordinance No. 1444 received two affirmative votes.' Conclusions of law, of course, are not fortified by the 'clearly erroneous' rule. Rule 52(a), Supra.

Neither of the parties places great weight upon the voting on first reading of the ordinance. The statutes on procedure in passing ordinances read:

'Procedure in passing ordinances.--All ordinances shall be read twice and the second reading and final passage shall not be had in less than one week after the first reading. After the first reading and before final passage, an ordinance may be amended. Except as otherwise specifically provided, a majority of all of the members of the governing body must concur in the passage of an ordinance and in the creation of any liability abainst the city and in expending or appropriating money.' Sec. 40--11--02, N.D.C.C.

'Yea and nay vote on passage--When required.--The yeas and nays shall be taken and entered on the journal of the governing body's proceedings upon the passage of all ordinances and upon all propositions creating any liability against the city or providing for the expenditure or appropriation of money, and in all other cases at the request of any member.' Sec. 40--11--03, N.D.C.C.

In view of the facts that the applicable statutes require two 'readings' but the word 'passage' relates only to the second reading, and that amendment is permitted between the first and second readings, and that the taking of yeas and nays is required only for passage of ordinances, we hold that the requirement of concurrence of a majority of all the members applies only to the second reading and final passage. The discussion hereafter will therefore be concerned only with the factual and legal situation at the time of the second reading and passage of the ordinance.

The one issue before us is exhaustively briefed by the parties. In support of its position, the City relies primarily upon Babyak v. Alten, 106 Ohio App. 191, 154 N.E.2d 14 (1958); City of Alamo Heights v. Gerety, 264 S.W.2d 778 (Tex.Civ.App.1954); Payne v. Petrie, 419 S.W.2d 761 (Ky.1967), and prior Kentucky cases; Murdoch v. Strange, 99 Md. 89, 57 A. 628 (1904); Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 23 N.E. 72 (1889); and State ex rel. Young v. Yates, 19 Mont. 239, 47 P. 1004 (1897).

The City also cites McQuillin on Municipal Corporations, 3d Ed., Sec. 13.32, p. 521, as follows:

'While it has been said that those present who refuse to vote for a proposition cannot be counted, the general rule is (that they) are regarded as having voted affirmatively, i.e., for the proposition, or to have voted with the majority. In the latter instance, in some jurisdictions, a majority means a majority of those present and voting. In such a case, a 'pass' vote must be counted as voting with the majority. . . .'

Bell, on the other hand, cites State v. Gruber, 231 Or. 494, 373 P.2d 657 (1962); Ezell v. City of Pascagoula, 240 So.2d 700 (Miss.1970); Streep v. Sample, 84 So.2d 586 (Fla.1956); Prezlak v. Padrone, 67 N.J.Super. 95, 169 A.2d 852 (1961); Bonney v. Smith, 194 Okl. 106, 147 P.2d 771 (1944); Pollasky v. Schmid, 128 Mich. 699, 87 N.W. 1030 (1901); Cascaden v. City of Waterloo, 106 Iowa 673, 77 N.W. 333 (1898); McLean v. City of East St. Louis, 222 Ill. 510, 78 N.E. 815 (1906); Wood v. Gordon, 58 W.Va. 321, 52 S.E. 261 (1905). Pimental v. San Francisco, 21 Cal. 351, 7 Pac. States Reports 351 (1863), and prior California cases, and Tracy Cement Tile Co. v. City of Tracy, 143 Minn. 415, 176 N.W. 189 (1919), also tend to support Bell's position.

Bell also cites McQuillin, 3d Ed., Sections 13.31, 13.31a, and 13.31b, at pages 513 through 517.

There are no North Dakota decisions on the precise point. Although we are not bound by decisions of other States, we examine them and welcome their aid in deciding the question before us.

We notice first of all that the language of the various statutes and ordinances involved in those cases contain differences in language which may or may not be persuasive. We have disregarded cases which merely base their decision upon whether a quorum is present, and have restricted our consideration to those cases which are concerned with special language or stricter requirements. Such provisions in the cited cases include 'a majority of the entire membership of the council' (State v. Gruber); 'three-fourths of the governing body' (Streep v. Sample); 'majority of the whole number' (Prezlak v. Padrone); 'three-fourths of the . . . body' (Bonney v. Smith); 'two-thirds of all members elected' (Pollasky v. Schmid, Wood v. Gordon, Pimental v. San Francisco); 'four-fifths vote of all the members' (Tracy Cement Tile Co. v. City of Tracy); 'three-fourths of all the members' (City of Alamo Heights v. Gerety); 'majority of the members' (Payne v. Petrie); 'majority of all the members' or 'majority of all members' (State ex rel. Young v. Yates, Ezell v. City of Pascagoula); 'majority of all members elected' (Babyak v. Alten, McLean v. City of East St. Louis).

It will be noticed that five of the statutes or ordinances in the foregoing cases use the word 'elected,' while the others do not. This fact has been considered significant or determinative in some decisions. State v. Hoppe, 194 Minn. 186, 260 N.W. 215 (1935), makes a distinction, in a case involving the presence of a quorum, between statutes using the word 'elected,' held to require the determination of a quorum to be based on the required percentage of members both present and absent, and statutes not containing the word ...