Raynovich v. Romanus

• Decision Date: 19 January 1973
• Citation: 299 A.2d 301,450 Pa. 391
• Parties: George RAYNOVICH, Jr., Appellant, v. John T. ROMANUS.
• Court: Pennsylvania Supreme Court

Page 301

299 A.2d 301

450 Pa. 391

George RAYNOVICH, Jr., Appellant, v. John T. ROMANUS.

Supreme Court of Pennsylvania.

Jan. 19, 1973.

George Raynovich, Jr., Stone & Raynovich, Pittsburgh, for appellant

John R. Luke, Luke & Dempsey, Pittsburgh, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This Quo Warranto proceeding challenges the validity of the borough councilmanic election of one of its members to fill a vacancy in the office of mayor. The appellant, George Raynovich, Jr., initiated the action alleging voting improprieties in the election of appellee, John T. Romanus, to the office of Mayor of the Borough of Baldwin.

The complaint recites that on January 1, 1972, a vacancy existed in the office of Mayor of the Borough of Baldwin. At a properly called meeting on January 3, 1972, the borough council undertook to fill that vacancy. Four were nominated for the office of mayor: Romanus, Bracken, and Bennett--all council members; and Burke--a non-council member.

Appellant, also a member of council, objected to the nomination for the office of mayor of any council member. ¹ He also objected to any nominated members participating in the voting. However, neither objection prevailed and council proceeded to vote on the nominees. Appellant voted for Burke, the non-council member. Benett abstained from voting. Three council members voted for Romanus. Romanus voted for Bracken and Bracken voted for Romanus, giving Romanus a total of four votes out of seven. Immediately after resigning from council Romanus was sworn in as the new mayor on January 3, 1972, to fill the unexpired term.

In his complaint appellant alleged that by 'prearrangement' Romanus and Bracken had voted for each other. Appellant contends that such a trade of votes is illegal, and thus invalidates council's election of Romanus as mayor. Appellee, Romanus, filed preliminary objections in which, inter alia, he demurred to the complaint on the grounds that it failed to state a cause of action. The court below sustained the preliminary objections and dismissed the complaint. This appeal followed. The main issue thus presented is whether, accepting as true all of appellant's factual allegations, he has stated a cause of action which would invalidate the election of John T. Romanus as mayor and thus entitle him to the relief requested.

We shart with the premise that absent a statutory prohibition a borough council may select one of its members to fill a mayoral vacancy. Our Legislature has not spoken on this issue and thus absent any voting illegality or other impropriety there is no impediment to the authority of council to select a fellow council member to fill a vacancy in the office of mayor. The only statutory restriction placed upon council in filling such vacancies is that the new mayor must be 'a registered elector of the borough.' ² It would indeed seem counterproductive and contrary to the public interest to establish for the first time a rule that one who has been elected by his fellow citizens, served on the council, and presumably has knowledge and experience in local governmental affairs is per se ineligible to fill a vacancy in the mayor's office. We are not disposed to fashion such a categorical rule.

However, it is also well-established in this Commonwealth, as well as in practically all jurisdictions, that a councilman may not vote for himself nor may he vote on any matter in which he has a personal or pecuniary interest. Meixell v. Hellertown Borough Council, 370 Pa. 420, 88 A.2d 594 (1952); Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303 (1951); Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 22 A.2d 686 (1941); Commonwealth v. Raudenbush, 249 Pa. 86, 94 A. 555 (1915). Appellant contends, and we agree, this rule means that any council member-nominee for mayor could not vote for himself because of his personal interest in the result of the election. He further asserts that by arranging to trade votes, appellee and fellow council member, Bracken, in essence managed to vote for themselves. Therefore, reasons appellant, both Bracken's and Romanus' votes should not be counted, leaving Romanus with only three votes, not a majority of the entire council.

Because of the posture of this appeal we must accept all of appellant's Allegations of fact as true. Therefore we must accept that there was indeed some 'prearrangement' between councilmen Bracken and Romanus to exchange their votes. However, this Court need not accept appellant's Conclusion of law--that such an exchange of votes was indeed unlawful. See Goodrich-Amram, Standard Pennsylvania Practice, § 1017(b)--11 at 93; § 1111 (Supp.1972).

Even if we assume, arguendo, that such an arrangement to trade votes was unlawful, and those two votes were thus void, we must nevertheless reach the conclusion that the election of appellee as mayor was valid. In Meixell v. Hellertown Borough Council, supra, this Court was faced with this identical issue. There a nine member borough council met to elect a new burgess (mayor). Two of the nine council members voted for themselves and their votes were declared 'void and therefore a nullity.' Meixell, supra, 370 Pa. at 422, 88 A.2d at 595. This Court there said:

'(s)ince the vote of 2 councilmen was illegal and void, neither their vote nor their presence should be counted in computing a quorum of a majority.

'That left 7 valid votes--more than a quorum. Of those 7 qualified and valid votes, 4 voted for Meixell for Burgess, 2 for Councilman Judd, and 1 for Councilman Abel. A quorum being present and legally voting, and Meixell having received a majority of all the legal votes cast, he was duly elected Burgess.'

Id. at 424, 88 A.2d at 595--596.

Applying the same compelling reasoning to the instant case we must conclude that if Romanus' and Bracken's votes were void and their presence thus not counted toward a quorum, nevertheless the remaining membership still constitutes a majority and a quorum of five valid votes still remains. Section 46001 of The Borough Code specifically provides, '(a) majority of the membership of council then in office shall constitute a quorum.' Act of February 1, 1966, P.L. (1965) 1656, § 1001, 53 P.S. § 46001. When a quorum is present a majority of that quorum can validly elect a mayor. Commonwealth ex rel. Fortney v. Wozney, 326 Pa. 494, 192 A. 648 (1937); Commonwealth v. Fleming, 23 Pa.Super. 404 (1903). A quorum being present and Romanus having received the votes of a majority of the quorum, he was thus lawfully elected mayor.

We agree that the Common Pleas Court of Allegheny County reached the correct result in sustaining the appellee's preliminary objections and in dismissing the complaint.

Order affirmed.

JONES, C.J., did not participate in the consideration or decision of this case.

MANDERINO, J., concurs in the result.

EAGEN, J., filed a dissenting opinion in which POMEROY, J., joined.

EAGEN, Justice (dissenting).

Contrary to the position of the majority, I cannot accept the premise that absent a statutory prohibition a borough council may select one of its members to fill a mayoral vacancy, and, on this ground, I respectfully dissent.

It is well established in our law that simply because the Legislature has not expressly prohibited a certain activity by a public official it follows that he may undertake such activity. As was aptly stated in Goodyear v. Brown, 155 Pa. 514, 26 A. 665 (1893): '. . . it does not follow that everything may be done by a public officer that is not forbidden in advance by some act of assembly.' Id. at 518, 26 A. at 666.

The question herein involved is one which has its roots in public policy and, absent a statutory directive, I find it advisable to return to the common law, the fountainhead of the rules of public policy, to ascertain a correct answer to this problem. My analysis of this question will follow a three-pronged approach, that is, an examination of treatises, rules from courts of other jurisdictions, and lastly an opinion from this Court.

Turning first to the treatises, McQuillan, the leading authority on municipal corporations, states the following rule:

'Officers who have the appointing power are usually disqualified for appointment to office to which they may appoint. Such exercise of the appointive power is against public policy, and is void on its face, and the one so appointed, it has been said, is not even a de facto officer. . . . Pursuant to the general rule, a council although possessing the power of appointment may not select one of its own members as clerk of council, as a member of a board of assessors, or as city manager. For a like reason, a member cannot vote to confirm his own appointment to office.' McQuillan, Municipal Corporations, Vol. 3, § 12.75, pp. 325--26 (3rd Ed. 1963). ¹

Thus, the general rule seems to be: Officers who have the appointing power, or who are members of an appointing body, are disqualified from appointment to the offices to which they may appoint.

One of the first cases to adopt this rule was Meglemery v. Weissinger, 140 Ky. 353, 131 S.W. 40 (1910). Meglemery was a member of the appointing body which appointed him to the office of bridge commissioner. Three days after his appointment, his term of office on the appointing board expired, thus he was only holding one office. He was subsequently removed from the office of bridge commissioner and he brought suit seeking reinstatement; the court refused reinstatement, relying on the aforesaid general rule stating:

'As Meglemery was on December 31, 1909, a member of the body that appointed him to fill this place, the appointment was void for reasons of public policy that are both sound and sufficient. And so we have held that in cases like this the fiscal court cannot appoint one of its members to a place that carries with it duties and compensation. . . . Nor does the fact that his term...