Martin v. Ballinger

KNIGHT, J.

Defendants appeal from a judgment upholding plaintiff’s appointment to the office of councilman of the city of Concord, and directing the issuance of a writ of mandate commanding that he be allowed to exercise all of the rights incident to such office.

The question of the legality of the appointment arose out of the following situation: Said municipality operates under the provisions of the general Municipal Corporation Act as a city of the sixth class. Its government is vested in a council composed of five members, and the president of the council acts as mayor. One of the members resigned, and thereafter, at a regular meeting at which were present the remaining four members, a motion was made by Councilman Eddy and seconded by Councilman Pedrizetti that plaintiff be appointed to fill the vacancy caused by said resignation. The motion was put to a vote and Councilmen Eddy and Pedrizetti voted in the affirmative. The other two, Mayor DeRosa and Councilman Bott refused to vote, assigning as the reason for such refusal that they thought the selection of the new member should be left to the voters at the next city election. Under the provisions of said Municipal Corporation Act three members of the council constitute a quorum for the transaction of business; therefore, as will be noted, plaintiff’s appointment received the affirmative votes of a majority of a quorum. In conformity with said vote the city clerk, a few days later, issued in due form and under the seal of the city plaintiff’s certificate of appoint

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ment; and plaintiff qualified by taking and filing the oath of office. However, at the next meeting of the council held a month later, it was ordered that the minutes of the previous meeting be corrected so as to show that the city attorney had ruled that plaintiff had not been legally appointed because he had not received “a majority of votes of the members of the Town Council . . . that it took a majority vote of the members of the Council to elect”. Thereupon the mayor refused to recognize plaintiff as a member of the council or to allow him to participate as such in the transaction of any of its business. Plaintiff then instituted the present proceeding in

mandamus.

On this appeal appellants make no attack upon the legality of the appointment upon the ground previously urged before the council, to wit, that a majority vote of all members of the council was essential to a valid appointment. Quite to the contrary, they concede it to be the law, as respondents contend, that where there is a quorum present, and a majority of the quorum votes in favor of a proposition, it is carried, notwithstanding an equal number refuse or fail to vote; that in the absence of governmental regulation to the contrary, and here there was none, it is not the majority of the whole number of members present that is required, but only a majority of the number of members necessary to constitute a quorum. (19 R. C. L., p. 890, sec. 190, and eases cited in note 2; 43 Cor. Jur., p. 510, see. 782.) But appellants insist that the foregoing rule is subject to the qualification that if the nonvoting members have expressed opposition to the measure to be voted on, it is equivalent to casting negative votes and their votes should be so recorded. Evidently the point thus urged has never been presented to the reviewing courts of this state; and appellants frankly admit that courts of other jurisdictions and text and reference books generally declare adversely to their contention, and that the only cases they have been able to find which they claim support their view are