Opinion
July, 1904.
James F. Brearton, in person (William J. Roche, of counsel), for motion.
Lewis E. Griffith, opposed.
This is a proceeding under section 2471a of the Code of Civil Procedure.
It is not a proceeding to try title to office. Matter of Foley, 8 Misc. 196; Matter of Sells, 15 A.D. 571; Matter of Dudley, 33 A.D. 465; Matter of Bradley, 141 N.Y. 527; Matter of Brenner, 67 A.D. 375; 170 N.Y. 185.
And while the court will not in these proceedings try title to office, but put the petitioner to his action, still a mere denial by the defendant of the petitioner's title is not sufficient to defeat the proceedings; the court will look far enough into the matter to ascertain whether the petitioner has a prima facie title to the office.
Ordinarily appointments, or election to office, are evidenced by certificates of appointment, or certificates of election, issued by the official making the appointment or by the officials charged with verifying or conducting the election, so that where it appears in a proceeding of this kind that a person claiming office has received a certificate of election, or appointment from the proper person or persons, it is held that he has a prima facie title to the office, and is entitled to an order for the possession of the books and papers pertaining to that office. Matter of Foley, 8 Misc. 196; Matter of Brenner, 67 A.D. 375; 170 N.Y. 185.
And it has been held that where such a certificate is produced the former incumbent of the office cannot go into questions underlying the election and which he may allege as invalidating it. Matter of Bradley, 141 N.Y. 527-530.
It has been said that it is "well settled that the statute cannot be successfully invoked unless the title of the applicant is clear and free from reasonable doubt." Matter of Brenner, 67 A.D. 375-377.
Public policy requires that controversies of this character be speedily determined, and for that reason the summary remedy provided by the Code was devised.
The fact that the petitioner's title to office turns upon questions of law, and those difficult of solution, will not defeat his right to the order. When the only question is one of law, it can just as well be decided in these proceedings as in any other, and the court will not compel the party to resort to an action, which may not be ended until his term of office has expired, to determine merely a question of law.
The Matter of Brenner was one that depended entirely upon the solution of a legal question, and not a question of fact; that that question was not entirely clear and not easy of solution is evidenced by the fact that there was a sharp division in the Court of Appeals, two judges thereof dissenting from the decision.
It is only when upon the facts his prima facie title is not "clear and free from reasonable doubt" that the petitioner will be denied the remedy provided for by section 2471a, and put to his action to settle the question of fact. Here it seems to me that the facts show the prima facie title of the petitioner to be "clear and free from reasonable doubt."
The petitioner produces the certificate of the president of the common council that he was duly chosen clerk thereof. The sufficiency of that certificate is challenged.
It is said that the office of president of the common council is a purely statutory office, with limited powers and duties, and those specifically defined, and that nowhere is he given power to authenticate, or certify to, the acts or proceedings of the common council.
The city clerk is the official charged with keeping the record of the proceedings of the common council. Section 15, chapter 182, Laws of 1898. And ordinarily the person charged with keeping a record of proceedings is the one to certify to them.
In this case the person so charged is the defendant, and upon being applied to by the petitioner for a certificate, declined to give him one.
The petitioner then has produced the certificate of the only officer of the common council who would provide one; the other officer in a position to certify to the proceedings is his adversary.
It would be a travesty upon justice to hold that the petitioner's right to maintain this proceeding can be defeated because his adversary has refused to issue to him a certificate of the proceedings of the common council, at which it is claimed he was elected. If it was his duty to furnish it, then he cannot assert his failure to perform his duty, to defeat the plaintiff's proceeding against him.
But I have not been referred to any provision of law, nor have I been able upon my own investigation to find one, that requires the issuing of any certificate of the election of a clerk of the common council.
The statute is silent as to how his election shall be authenticated. No commission, or certificate of election, or appointment is provided for, and where none is provided for none is required.
While the courts have held as above stated, that, where an applicant comes with a certificate of appointment, or election, from the proper officer, and has taken his oath of office, and filed an undertaking, where one is required, he has established a prima facie title to the office, and is entitled to an order for the possession of the books and papers pertaining to such office, it has never been held that that is the only evidence of title to office which will entitle him to maintain the proceedings.
Where the undisputed facts in the case make out a prima facie title to office, then, even although no certificate of appointment or election is produced, the order will issue. Where no certificate of election is provided for by law, it is evident that such election or appointment may and indeed must be authenticated to the court in some other manner. In this case there are some undisputed facts, to wit: That the number of the common council of the city of Troy is seventeen; that at a regular meeting held on the 19th day of May, 1904, the president and seventeen aldermen were present; that a number of the members left the meeting. That thereafter a vote was taken upon the election of clerk, and six aldermen voted for Mr. Brearton, and three other aldermen voted for other candidates, nine voting in all upon the question of the election of clerk. That at a regular meeting held on the second of June the president and seventeen aldermen were present. That during the meeting a number of the aldermen left the common council chamber. That thereafter seven aldermen voted for Mr. Brearton for the office of clerk, one alderman voting against electing him clerk, and one other alderman being present did not vote, nine aldermen, therefore, being present at the time Mr. Brearton received seven votes for the office of clerk, and being thereupon declared elected to such office by the president of the common council. What is the legal conclusion from these undisputed facts?
The statute governing the city of Troy, provides as follows: "The common council shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its members. Its meetings shall be public and its records open to public inspection, and, except as herein provided, the majority of all its members shall be a quorum for the transaction of business. The passage of an ordinance, unless otherwise herein provided, shall require the affirmative vote of at least a majority of all its members." Laws of 1898, chap. 182, § 17.
Section 2 of the rules of order adopted by the common council reads as follows: "Upon the appearance of ten members, the Common Council shall be called to order by the President, or if he be absent, by the President Pro Tempore appointed by the board."
The construction heretofore placed upon this provision of the statute, coupled with the rule, by the common council, and apparently by the city officials, is, that it requires ten members of the common council to transact business. It was in accordance with that construction that it was announced that no quorum was present when the vote was taken for city clerk upon May nineteenth, when nine members were present.
And that construction is now contended for by the defendant in these proceedings.
Of course the common council can make no valid rules that are in conflict with the statute.
It is contended, however, that the words, "except as herein provided," means, not only as provided in the statute, but also as may be provided for in the rules of procedure adopted by the common council, by virtue of the preceding clause of the section.
That does not seem to me the proper construction to be given to those words. It hardly seems probable that the Legislature, after providing in the act for one thing, should in the same act provide that the common council might by its rules nullify that provision. The words in question refer, I think, to the whole act. As we have seen in the statement of facts herein, there are other provisions of the statute requiring more than a majority vote for their adoption by the common council, and the exception mentioned in section 17 obviously refers to the last clause of the section itself, and to the other express provisions of the statute requiring more than a majority vote for the doing of the things specified in such provisions.
Furthermore, the reading of the statute is that "The common council shall determine the rules of its own proceedings."
That is the method and manner of doing business, how it shall proceed. Not who shall do business. Not who shall proceed. Not who shall constitute the common council. The individual aldermen do not constitute the common council, it is only when they are regularly convened in sufficient numbers that they constitute the common council, and the Legislature has said what that number shall be to constitute the common council. A quorum is the common council.
What shall constitute the common council is a part of the fundamental law of the city. A part of its constitution. It is determined by the creator, not by the creature. To the creature is left the making of its rules of procedure, after it has come into being, under the statute.
I conclude, therefore, that the exception mentioned in the statute does not mean any exception that should be provided for by the rules of procedure adopted by the common council.
In addition it may be said that the rules do not in express terms provide what number shall constitute a quorum, or have power to transact business. The rule in question reads "Upon the appearance of ten members the Common Council shall be called to order," etc., and, therefore, is not in terms in conflict with the statute, although it is by implication.
In this case it appears that at the meetings of May nineteenth and June second, seventeen members were present when the meetings commenced, so that the rule was complied with. And nine were present upon each occasion when the vote was taken for the choice of a clerk. That constituted a quorum, and as such it had power to elect a clerk.
"The general rule of all parliamentary bodies is, that, when a quorum is present the act of the majority of the quorum is the act of the body." McFarland v. Crary, 6 Wend. 298; Sargeant v. Webster, 54 Mass. 497; Brown v. District of Columbia, 127 U.S. 579; United States v. Ballin, 144 id. 1.
"A quorum is, for all legal purposes, as much the body to which it appertains as if every member were present, and when a quorum has met an act of the majority of such quorum is an act of the body itself." 23 Am. Eng. Encyc. of Law, 591.
It is claimed, however, that there was no election of clerk at the meeting held June second, because there were only eight votes cast, and that that was not a quorum. It is conceded, however, that there were nine present. A quorum being present it was not necessary that all or even a majority of those present should vote.
"When a part of the members present refuse to vote at all, a vote may be legally decided by a majority of those actually voting, though they do not constitute a majority of the whole number present. This rule rests upon the principle that members present and not voting will be deemed to assent to the action of those who do vote." 23 Am. Eng. Encyc. of Law, 592.
"Whenever electors are present, and don't vote at all, they virtually acquiesce in the election made by those who do." Sudbury v. Stearns, 38 Mass. 148-154.
"The exercise of law-making power is not stopped by the mere silence and inaction of some of the law-makers who are present." Attorney-General v. Shepard, 62 N.H. 383; approved, United States v. Ballin, 144 U.S. 9.
The defendant in these proceedings further contends that the election was illegal, because as he claims section 33 of chapter 182 of the Laws of 1898, requiring the election to be by viva voce vote, was not complied with.
His contention, as I understand it, is that each man should orally name his choice for clerk. It will be observed that that was done at the meeting of May nineteenth. While that is a compliance with the requirement, it is not the only way in which it can be satisfied.
The term " viva voce" when applied to elections is used in opposition or contradistinction to the ballot, and simply means that the voter shall declare himself by voice, instead of by ballot.
In this country, as a general rule, the people vote by ballot, so that their action may be secret, free and untrammeled; their representation, viva voce, so that their action may be public and known to their constituents. So that when a nomination is made either by written resolution or oral motion, and each person announces his vote for or against it by his voice, the vote is viva voce.
The manner of choosing a clerk in this case was left to the discretion of the common council, so long as the vote was viva voce.
It could have been done by calling the roll, and each member naming his choice, or by placing candidates in nomination, and then calling the roll of members, as was done at the meeting of May nineteenth, or by naming a candidate by resolution and calling the roll, and the members orally voting for or against it, as was done at the meeting of June second Any of these methods would be voting viva voce. The principle of public, not secret, voting would be complied with.
Complaint is made of the alleged arbitrary action of the president of the common council, in refusing to put motions, made by different aldermen, to the common council to be acted upon, particularly a motion to adjourn.
As we have seen in Matter of Bradley, 141 N.Y. 530, where the petitioner shows a prima facie title, the former incumbent will not, in these proceedings, be permitted to go into questions underlying the election and which he may allege invalidate it. So here it appearing that a majority of those entitled to choose a clerk have voted for the petitioner, the court will not, in this proceeding, inquire into what preceded the vote upon that question.
There is no complaint of any arbitrary or improper action at the meeting of May nineteenth, and it does not appear that any votes were forced in favor of the petitioner by the action of the president at the meeting held June second.
It may not be out of place to say that the way to check or defeat the arbitrary action of a presiding officer is not to run away from the meeting, unless in sufficient numbers to leave the meeting without a quorum. The orderly way, the only safe way, as this proceeding demonstrates, is not to abandon the meeting, but to contest the alleged arbitrary action by legal and parliamentary methods.
The majority can always rule; if temporarily overridden by arbitrary action, the courts will rectify the wrong and enforce its right.
It appearing then from the undisputed facts in the case, that at the meetings of May nineteenth and June second, when there were a sufficient number of aldermen present to constitute a quorum, and, therefore, to constitute a common council, a majority of those present upon each occasion voted viva voce for the election of James F. Brearton as city clerk and clerk of the common council, it must be held that a prima facie title to that office is established in his favor, and that the order prayed for should be granted, with costs of these proceedings. Let an order be entered accordingly.
Ordered accordingly.