Opinion
No. 4388.
Argued February 2, 1955.
Decided March 11, 1955.
A question of statutory construction bearing upon the legality of a proposed expenditure of public funds may properly be determined in declaratory judgment proceedings.
Where a statute (R. L., c. 56, s. 4) provides that the vote of a city council to acquire a municipal water works must be "confirmed by a majority of the qualified voters at [an] election or . . . meeting," a majority vote of those actually voting at a meeting, although less than a majority of the qualified voters of the city, is a confirming vote within the meaning of the statute.
The fact that in acquisition of utilities by towns the statute (R. L., c. 56, s. 5) provided specifically for a vote by "two-thirds of all the voters present and voting" did not require that a different construction be placed upon the preceding section relating to such acquisition by cities under somewhat different phraseology.
PETITION, for a declaratory judgment. R. L., c. 370, s. 20. By the requisite two-thirds vote the city council of Laconia voted to establish a municipal water works and to acquire the plant of the Laconia Water Company for that purpose. The action of the city council was submitted to the voters of the city for confirmation at a special meeting on June 22, 1954, at which 823 voted in favor of the question submitted and 740 voted against it. At that time there were 8240 registered voters on the city checklist.
The facts are not in dispute as appears from the reserved case transferred by Sullivan. J.
"It is the contention of the Laconia Water Company that 823 votes in favor of acquisition, while a majority of the votes cast and a majority of those present and voting, is not, however, a majority of the qualified voters whose names appeared on the official check list of the City of Laconia on June 22, 1954, as required by the Revised Laws of New Hampshire, 1942, Chapter 56, Section 4. Assuming that the 8,240 registered voters were all qualified voters, the petitioner claims that 4,121 votes were required in favor of acquisition for such vote to be a legally confirming vote as required. In any event, the petitioner claims that even though all of the 8,240 registered voters were not qualified, that a sufficient number were qualified so that in no event would 823 votes represent a majority of those qualified to vote whose names appeared on the check list.
"The parties agree that although not all of the voters on the official check lists on June 22, 1954, were qualified, at least 1,647 were so qualified.
"The petitionee claims that the statute above referred to requires only a majority vote of the qualified voters voting at the special meeting and that such vote was therefore a legal confirming vote as required . . . .
"The following question is reserved and transferred without ruling:
"Was the action of the City Council of the City of Laconia, taken on March 8, 1954, to acquire the plant of the Laconia Water Company, which was passed by a two-thirds vote of said Council, legally and effectively confirmed within the meaning and requirements of the Revised Laws of New Hampshire, 1942, Chapter 56, Section 4, by the vote taken at a special meeting on June 22, 1954, at which 823 voted in favor of the question submitted and 740 voted against it, the number of votes cast in favor being less than a majority of the voters on the official check list for said City on June 22, 1954, of whom at least 1,647 were qualified voters?"
Nighswander, Lord Bownes (Mr. Nighswander orally), for the plaintiff.
A. Gerard O'Neil, city solicitor and John N. Nassikas, special counsel (Mr. Nassikas orally), for the defendant.
Revised Laws, chapter 56, section 4 provides that the two-thirds vote of a city council to acquire a municipal water works must be "confirmed by a majority of the qualified voters at a regular election or at a special meeting duly warned in either case . . . ." The issue in this case is whether the vote at the special meeting of June 22, 1954, at which a majority of those voting, but less than a majority of those qualified to vote, was a confirming vote within the meaning of R. L., c. 56, s. 4. This is a problem of statutory construction bearing upon the legality of a proposed expenditure of public funds which may be properly determined in a declaratory judgment action. Leavitt v. North Hampton, 98 N.H. 193.
"In the absence of express regulation, a proposition is carried in a town meeting, or other legislative assembly, by a majority of the votes cast." Attorney General v. Shepard, 62 N.H. 383, 384. This has been regarded as "the leading case" on the subject (Opinion of the Justices, 98 N.H. 530, 531) and states the general rule here as well as elsewhere. Attorney General v. Bickford, 77 N.H. 433, 434; McQuillin, Municipal Corporations (3rd ed.) s. 12.18; Anno. 131 A.L.R. 1382. The basis for this rule is that the elective franchise is to be exercised affirmatively. "Silence on a part of the members not voting cannot be counted against the express voice of another part voting." Richardson v. Society, 58 N.H. 187, 188. The same thought was expressed in Cashman v. City Clerk of Salem, 213 Mass. 153, 155, in the following language: "Elections must be settled as a practical matter by those manifesting interest enough to vote. Failure on the part of some of the electorate to take the trouble to express their views by depositing their ballots cannot stop the machinery of government. Apathy is not the equivalent of open opposition." See Opinion of the Justices, 98 N.H. 530, 533. The practical working of the elective system necessarily requires that those who do not vote be considered as acquiescing in the result declared by a majority of those who do vote. "The great weight of authority holds that where a statute provides for a vote of `a majority of the voters,' `a majority of the legal voters,' `a majority of the qualified voters,' etc. all that is required is a majority of those actually voting, unless a contrary legislative intention and purpose is very clearly expressed." Munce v. O'Hara, 340 Pa. 209, 211.
The plaintiff argues that R. L., c. 56, s. 5, relating to the acquisition of utilities by towns which requires a favorable vote by "two-thirds of all the voters present and voting" indicates that the test for cities was not intended to be the same as for towns and that the general rule should not apply. It is the plaintiff's position that the legislative history of the two sections shows that the Legislature did not intend "majority of the qualified voters" to mean majority of those present and voting and if they had, they would have said so. Plaintiff claims that the statute is clear and unambiguous and means those who were eligible or qualified to vote at the meeting whether they did or not. While these arguments are not tenuous and do have merit, the course of judicial decisions indicate that from an early date they have been rejected as persuasive evidence of legislative intent in cases of elections, bond issues and referendums. Cass County v. Johnston, 95 U.S. 360; Knox County v. Ninth Nat'l Bank, 147 U.S. 91. Cf. Opinion of the Justices, 86 N.H. 604. In construing similar language in Carroll County v. Smith, 111 U.S. 556, 565, the court said that "the words `qualified voters,' as used in the Constitution, must be taken to mean not those qualified and entitled to vote, but those qualified and actually voting. In that connection, a voter is one who votes, not one who, although qualified to vote, does not vote."
The various statutes which authorize municipalities to make appropriations or authorize the power of eminent domain do not always use the same phraseology in stating when a vote becomes operative although the meaning is the same in each case. However when the Legislature intends that a definite number of the qualified voters must cast their ballots, they say so expressly. R. L., c. 51, s. 5; c. 70, s. 4; c. 139, s. 3. In the absence of such an express provision, a majority of the qualified voters who vote determine whether an appropriation shall be made, a bond issue approved or a proposition accepted. R. L., c. 267, ss. 58, 59, authorize towns to acquire dams by a two-thirds vote of all voters present and voting at a meeting "at which a majority of all the legal voters are present and vote." This indicates that the Legislature knows how to express a stringent voting requirement, if it desires to do so in any particular case. It did not make any such requirement under R. L., c. 56, s. 4, but merely required confirmation by "a majority of the qualified voters at [the] election or. . . meeting?" This language does not suggest that a "majority of the qualified voters of the city" must take affirmative action, and the general rule is applicable that a majority of those voting is sufficient.
The construction of R. L., c. 56, s. 4, which we adopt is believed to state the legislative intent as understood and enforced in New Hampshire. One of the facts of political life in this state is that questions, propositions and referendums are voted upon by only a fraction of the same voters who cast their ballots for candidates and officers. This is a matter of common knowledge which is presumably known to. the Legislature which is composed of many municipal and election officers. State v. Duranleau, 99 N.H. 30, 33. It can be verified readily by an examination of election results in almost any city or town clerk's office or by a casual reading of the New Hampshire Manual for the General Court for any year.
The answer to the transferred question is "yes" and the order is
Judgment for the defendant.
All concurred.