Rushville Gas Company v. City of Rushville

• Decision Date: 10 December 1889
• Docket Number: 15,165
• Citation: 23 N.E. 72,121 Ind. 206
• Parties: The Rushville Gas Company v. The City of Rushville et al
• Court: Indiana Supreme Court

23 N.E. 72

121 Ind. 206

The Rushville Gas Company v. The City of Rushville et al

No. 15,165

Supreme Court of Indiana

December 10, 1889

From the Rush Circuit Court.

Judgment affirmed.

B. L Smith, C. Cambern, T. J. Newkirk and U. D. Cole, for appellant.

A. B Irvin, G. H. Puntenny, W. A. Cullen and J. D. Megee, for appellees.

OPINION

Elliott, J.

The mayor of the city of Rushville appointed a committee composed of the members of the common council, to investigate and report upon the question of the expediency of buying an electric-light plant and machinery. The committee, in due time, reported to the common council in favor of making the purchase. On the 3d day of April, 1889, action was taken on the report at a regular meeting, at which all of the members of the common council were present, and the following resolution was introduced:

"Resolved, That the report of the special committee, relating to lighting the city, be adopted, and that the officers therein named be instructed to sign the contract named therein."

Three of the six members composing the common council voted in favor of the resolution, but the other three members, although present, declined to vote, and the mayor declared that it was adopted. By virtue of this resolution the city is about to enter into a contract with the companies named in the report for the purchase of an electric light plant and the power to run it, for which the city is to pay the sum of ten thousand one hundred and fifty dollars. Acting under the resolution the Edison Manufacturing Company has put up poles, strung wires on them, and placed in operation a system of electric lights, and the city will buy the plant and machinery, unless enjoined. The city has contracted with the Buckeye Engine Company for a steam engine and appliances to be used in operating the machinery of the Edison company plant, at a cost of two thousand two hundred dollars. Unless enjoined the city will issue bonds to pay for the plant, machinery, engine and appliances.

The meeting at which the resolution was adopted was a regular one, attended by all the members of the common council, and all who voted at all voted in favor of the resolution. The question, therefore, is: Does the fact that three of the members present declined to vote authorize the conclusion that the resolution was not legally adopted? In our judgment it does not.

The rule is that if there is a quorum present and a majority of the quorum vote in favor of a measure, it will prevail, although an equal number should refrain from voting. It is not the majority of the whole number of members present that is required; all that is requisite is a majority of the number of members required to constitute a quorum. If there had been four members of the common council present, and three had voted for the resolution and one had voted against it, or had not voted at all, no one would hesitate to affirm that the resolution was duly passed, and it can make no difference whether four or six members are present, since it is always the vote of the majority of the quorum that is effective. The mere presence of inactive members does not impair the right of the majority of the quorum to proceed with the business of the body. If members present desire to defeat a measure they must vote against it, for inaction will not accomplish their purpose. Their silence is acquiescence, rather than opposition. Their refusal to vote is, in effect, a declaration that they consent that the majority of the quorum may act for the body of which they are members.

The rule we have asserted is a very old one. The doctrine is thus stated by one of the earliest writers on municipal corporations: "After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting; because their presence suffices to constitute the elective body, and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote." Willcock Munic. Corp., section 546. In a recent American work it is said: "Those who are present and who help to make up the quorum are expected to vote on every question, and their presence alone is enough to make the vote decisive and binding, whether they actually vote or not. The objects of legislation can not be defeated by the refusal of any one to vote, when present. If eighteen are present and nine vote, all in the affirmative, the measure is carried, the refusal of the other nine to vote being construed as a vote in the affirmative so far as any construction is necessary." Horr & Bemis Munic. Police Ordinances, 42. The principle involved is asserted in many cases. State v. Green, 37 Ohio St. 227; Launtz v. People, 113 Ill. 137; County of Cass v. Johnston, 95 U.S. 360, 369, 24 L.Ed. 416; St. Joseph Tp. v. Rogers, 83 U.S. 644, 16 Wall. 644, 21 L.Ed. 328; State v. Mayor, 37 Mo. 270; Everett v. Smith, 22 Minn. 53; Oldknow v. Wainright, 2 Burr. 1017; King v. Bellringer, 4 Term Rep. 810; Inhabitants v. Stearns, 21 Pick. 148.

We can not agree with appellant's counsel in the construction which they place upon the words of Judge Dillon found in section 279 of his work on Municipal Corporations, for, as we read what the author says, it is directly against the appellant. What is said by Judge Dillon is this: "So, if a board of village trustees consists of five members, and all or four are present, two can do no valid act, even though the others are disqualified by interest from voting, and, therefore, omit or decline to vote; their assenting to the measure voted for by the two will not make it valid. If three only were present they would constitute a quorum, then the votes of two, being a majority of the quorum, would be valid, certainly so where the three are all competent to act." In the first sentence Judge Dillon refers to cases where there is not a quorum present, because there is not the requisite number of qualified members in attendance. He is speaking of the effect of the presence of disqualified persons in that sentence, not of the effect of a vote of the majority of a quorum composed of qualified members of the body. In the last sentence he speaks of a case where there is a qualified quorum present, and he instances such a case as we have here, for here four would be a quorum, and, according to his rule, three of the four could adopt a measure if there were no opposing votes. The case referred to by the author in support of the proposition embodied in the first sentence quoted is that of Coles v. Trustees, 10 Wend. 659. In that case three of five town trustees were disqualified from voting, and there was, of course, no quorum of competent members, and consequently no capacity to act. The court said: "The act requires three out of five, or a majority, to make a quorum. If there were but three present, then the votes of two, being a majority, would be valid. Here were five trustees, three of whom were incompetent to vote by the act; and being so, it seems to to me, so far as the vote was concerned, they were not trustees for any purpose." It is obvious, therefore, that no such case was before the court as that now before us, for here all the members were present, and the measure was adopted by a majority vote of the quorum. One of the cases cited in support of the proposition contained in the second sentence of the section quoted by us is that of Warnock v. City of Lafayette, 4 La. Ann. 419, wherein it was held that a statute requiring a two-thirds vote to pass a measure meant two-thirds of the quorum present, and not two-thirds of the entire membership of the city council. Another case cited is Buell v. Buckingham, 16 Iowa 284, in which the opinion was written by Judge Dillon himself, and where it was held that a majority of a bare quorum may bind the corporation. The opinion quotes with approval from the opinion of Lord Mansfield in Rex v. Monday, Cowper, 538, this language: "When the assembly are duly met, I take it to be clear law, that the corporate act may be done by the majority of those who have once regularly constituted the meeting." The opinion also approves Chancellor Kent's statement that "A majority of the quorum may decide."

The decision in the case of the State v Porter, 113 Ind. 79, 14 N.E. 883, lends no support to the appellant's argument, and the...