88 Tenn. 52 | Tenn. | 1889
Lead Opinion
The bill in this cause was filed by J. C. Lawrence, claiming to be a duly elected and qualified member of the Board of Education of the city of Knoxville, for an injunction against defendants — the other four members of said Board—
The injunction issued, and, on final hearing, mandamus was awarded as prayed for.
Respondents appealed and assigned errors.
Two preliminary questions are made, which need to be briefly noticed before disposition of the real merits of the controversy. One of these is made by respondents, and is an objection to the pover of the Court to issue a mandatory injunction, upon the assumption that the one issued in this case is such. The other question is made by complainant, and goes to the right of the Court to inquire into the legality and validity of his election in this proceeding.
Respecting the first question, it is sufficient to say that the injunction is not mandatory'. The injunction prohibited the meeting and acting of defendants without giving complainant notice, and permitting him to act with them. It did not command his admission except the respondents pi'o-ceeded to act. It prohibited their acting, but-authorized them to avoid this prohibition on compliance with conditions which they could or could not accept as they saw proper, and was clearly not mandatory. It therefore becomes irrelevant and unimportant to discuss the question of the
As to the second question stated, it is equally clear that the Chancellor had the right to determine the legality and validity of the election under which complainant claimed title to the office for the exercise of the powers of which he sought the aid of the Court. Ilis election depended alone upon the action of the Board of Mayor and Aldermen, as embodied in the record made of it by them. The notification called a certificate, issued to him by the Recorder, is of no force or validity, because not required by law. But if it were, it could only embody the result of the record of election, and could not add to its efficacy in the least, or change its effect.
All the provision made in the charter of Knoxville respecting this election, pertinent to the point now being considered, is that it shall be made by the Mayor and Aldermen by ballot. No other official is, in terms, directed to declare it or to certify it, nor is any provision made for a contest.
In such, case it is well settled that the legality and validity of such election may be inquired into in any proceeding by mandamus to compel other persons to recognize the claimant’s title to the office, or when he seeks' to enter into it or otherwise assert his right to act as duly elected. 6 American and English Encyclopedia of Law, 384, 385, and cases cited; Marshall v. Kerns, 2 Swan,
These questions out of the way, we come to the real question in the case. "Was the complainant elected, and is he, therefore, entitled to compel the defendants to admit and recognize him as a member of the Board?
To determine this it is necessary. to examine his claim to election, and then ascertain if, under the' law, it is well founded. To support the first, he shows the following record from the minutes of the proceedings of the Board of Mayor and Aldermen, in addition to the notification or certificate of the Recorder, before referred to, and indorsement thereon of the Recorder that complainant had taken the oath required by law:
“At a called meeting of the Board of Mayor ,and Aldermen of the city of Knoxville, held Friday, January 27, A.D. 1888, there were present and answering roll-call: Aldermen Selby, Barry, Hockinjos, Jones, Albers, Horne, Perry, and McDaniel. Mayor Luttrell called Mayoi'-elect Condon and ex-Mayor Eulcher and Alderman S. B. Boyd to take seats on Mayor’s stand. The following proceedings were had — to wit:
“The minutes of the meetings of this Board of January 6, January 25, and January 26 were read and approved.
“ On motion of Alderman Albers, the Board took a recess of five minutes. Mayor Luttrell resumed the chair and called the Board to order. Alder*57 man Perry moved to go into an election for a member of tbe City School Board t'o fill out the nnexpired term of Hon, M. J. Condon, resigned. Motion carried.
“ Mayor Luttrell appointed Aldermen McDaniel and Barry as tellers, and Alderman Perry to take up the vote.
“Alderman Perry nominated E. L. Eisher. Alderman Jones nominated Mr. J. C. Lawrence. The ballot was taken, and it was found that J. C. Lawrence had received four votes and E. L. Eisher three votes; and a blank was also found without any name, and thrown out.
“ Mayor Luttrell declared J. C. Lawrence legally elected as a member of the City School Board of Education to fill out the unexpired term of Hon. M. J. Condon, resigned. Some discussion was had, after which Alderman Perry moved to reconsider said vote and election. Seconded by Alderman Albers. . f.
“ The ayes and noes were taken on roll-call. Aldermen Selby, Hockinjos, Albers, and Perry voting aye, and Aldermen Barry, Jones, Horne, and McDaniel voting no.
“ Mayor Luttrell decided the motion lost.
“ On motion of Alderman Barry the Board adjourned till 9 o’clock to-morrow morning.
“ (Signed) Approved:
Jas. C. Luttrell, Mayor.”
*58 “ City or Knoxville, Tenn.,
“January 31, A.D. 1888.
“ Mr. J. C. Lawrence:
“At the regular meeting of the Board of Mayor and Aldermen of the City of Knoxville, held January 27, A.D. 1888, you were chosen and elected as a member of Board of Education, to-fill out the unexpired term of said office of Martin J. Condon, resigned.
“ By order of the Board,
“ C. C. Kelson, Recorder.”
“Enrolled 1, 12 ’89. Bk. I., p. 45.
“J. C. Lawrence came before me and took oath of office, as required by new charter, January 81, 1888.
“ C. C. Kelson, Recorder.”
Upon this record and 'these statements of the Recorder, he bases his claim to the office and right to a peremptory mandamus.
Ko question is made that the oath stated to have been taken is not shown to have been done by this indorsement, nor upon the notification or certificate as such. The question is only made, as to the latter, that the Recorder had nothing to do with the election or certifying it, and that this certificate does not affect the question-; and this is true.
This brings us to the second subdivision of the real question — that is, to determine whether, under the law, he was in fact eleeteql. The provisions
Section 63 of this Act provides that there shall he a Board of Education for the city, to consist of five members, citizens of the town, and not members of the Board of Mayor and Aldermen.
“ Section 64. The Board of Education shall be elected by the Board of Mayor and Aldeznmen from the citizens and qualified voters of the town by ballot, and the term of office of each member shall he five years.
“ Section 3. * * * The Board of Mayor and Aldermen shall he composed of nine Aldermen.
“ Sectiozr 4. * * * The Mayor shall not vote, except in case there shall he a tie vote, on any question, and then he shall, by his vote, decide the question. * * *
“Section 5. It shall require a majority of the members of the Board to form a quorum for the transaction of business.”
PTo provision being made for the filling of vacancies izi the Board of Education, this defect was remedied by an ordinance, as follows:
“In case any vacancy shall occur in the Board of Education, the unexpired term of such member vacating shall be filled by an electiozi by the Board of Mayor and Aldermen as soon as practicable after such vacancy occurs.”
It is observed that there are nine Aldermen, who, with the Mayor, are to make the election, if all are present, the Mayor having no vote, as no tie could result; that if less than nine are present, but a majority of that number, then those present may elect; but, if equally divided in an election, the Mayor may cast the deciding vote, the only contingency in which his act can affect the question.
In the election now being considered a majority (eight) were present and participating in the election. This appears both in the recitals of the record hereinbefore shown and in the fact that seven ballots were cast for the candidates and one blank ballot.
It remains now to inquire what is the effect of this action on the part of this Board acting through its eight members, an authorized quorum.
In determining this question it must be borne in mind that we are not examining the effect of .an election by an indefinite number of electors — as, the vote of the body of the people of the city, or the vote of any indefinite number of people in a popular election — for the rule governing the one is entirely different from that governing the other.
Mr. Cooley treats alone the subject of popular elections, the scope of his work not including elections by governing bodies of corporations.
This is not only the rule at common law, but it is so by statute in this State; and hence in our elections by the people the candidate who gets the highest number of votes is elected.
And this rule is applied to corporate action where the corporate power resides in the inhabitants or citizens .at large, and where they meet and act in their primary capacity — and hence in indefinite numbers. Dillon on Munic. Corp., Secs. 208-215.
But the rale is equally well settled, and indeed is not open to controversy, that where an election is to be made by a definite body of electors, as a number of Aldermen, that, “in the absence of special provision, the major part of those present at a meeting of this select body must concur in order
“ Where, therefore,” adds the author, it appeared that thirteen ballots were cast when the members present were only entitled to give twelve votes, of which seven were for one person and six for another, there is no election, and the council, though it has declared that the person receiving seven votes was duly elected, may rescind its action and proceed to a new election.” Ibid.
And this common law rule as to majorities, he declares, is applied to governing bodies of municipal corporations where not specially regulated by charter or statutes. Secs. 216, 217.
We have seen that it is not only not differently regulated by the charter of Knoxville or other statute of' Tennessee, but that the charter provides for the transaction of business only by a majority of a quorum, and gives the Mayor a right to vote when the majority thereof cannot decide, thereby conclusively showing that a majority must concur, or there is no result. A different rule, as we have seen, and we repeat, prevails at common law where the election is by an indefinite number of electors, in which a plurality of votes is sufficient for an election.
These rules and their distinctions .are very forcibly and clearly stated in the able treatise on elections in the sixth volume of American and English Encyclopedia of Law, as follows: “ The only way to defeat the election of a candidate at an
“ This rule does not apply to cases where the elective body consists of a definite number and a majority of the members is required for an election. In such case a refusal to vote, or a blank vote by a majority, will defeat an election.” Pages 331, 322.
"We have heretofore seen that under this charter a majority of the quorum is required. This author shows, further, that the rule respecting the election by a definite number in a municipal body extends also to other bodies of definite numbers, as Legislatures, etc., and shows that in such case a majoi’ity must concur and vote for the candidate in order to elect him, quoting several cases and instances of high authority. He says, illustrating:
“ By Section 15 of the Revised Statutes of the United States, it is provided that all votes for Senators shall be by viva voce vote of members of the Legislature, and by Section 37, that all votes for representatives in Congress must be written or printed ballots, and that all votes received or recorded contrary to such action shall be of no effect.
He cites several cases sustaining the text, the notes being as follows:
“ In the absence of any Act of Congress on the subject, a State may pass a law, or a joint or con-curr.ent resolution of the Legislature, requiring a majority of all the members elected to both branches of the Legislature to elect a Senator of the United States; and in such a ease, where twenty-nine votes were given for one candidate and twenty-nine blank votes were given, it was heM that this did not constitute an election. Second Cong. El. Cases, 608; Yules v. Mallory, Sen. El. Cases, 146.” And again: “ In 1866, in the Stockton case in New Jersey (Senate Election Cases 264), it appeared that there was no law in the State regulating the election of Senators; and there had been a practice of regulating the election of all officers by resolution of the convention, and at the convention for the election of Senators in 1865 a resolution was adopted that a plurality of the members present might elect. The Judiciary Committee, reporting through Senator Trumbull, decided in favor of the validity of the election, but the resolution was amended by the close vote of 22 to 21, and the candidate was declared not • elected. It was claimed by some of the Senators that the parliamentary law required a*65 majority to elect, and tliis could only be changed by a law or a resolution of the bouses acting in their legislative capacity.” Ibid., 832.
Thus it appears, by concurrence of text-book, judicial, senatorial, congressional, and legislative authority, that the rule is settled that a majority of a' defi\iite body present and acting must vote for a candidate in order to elect him, and that it is not sufficient that he receive a plurality of votes cast or a majority if blank ballots are excluded. His claim must not depend upon the negative character of the opposition, but upon the affirmative strength of his own vote. It is not sufficient that a majority were not cast against him; to be elected, the majority must be cast for him.
“ 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.” Dillon on Munic. Corp., Vol. I., Sec. 217.
These authorities answer the proposition urged by complainant that the blank vote must not be considered, and it must be treated as though only seven votes were cast and he got four. It is true that the blank vote cannot be, in the technical
But complainant’s case would be no better if that vote was entirely disregarded, because the record otherwise shows that eight Aldenneu were present, and, without reference to their vote, he must have received live votes in order to be elected.
The roll-call shows eight present. On the vote to reconsider eight voted. Indeed, it is not anywhere contended by complainant that they were not all present and participating, and, as shown, the contrary affirmatively appears.
But it is said that the Mayor declared the election carried, and that this is equivalent to a vote for him, and, with four votes for him and four not for him, the Mayor’s vote or action makes the election.
There are several answers to this — all conclusive.
Eirst, the Mayor had no right to vote, as there was no tie; and, second, he did not vote.
Third, his action declaring the result without voting could not make an election, because the law does not allow him to declare a candidate elected, even on a tie, without voting, or at all.
A still further argument is made, however, that the Board appears to have ratified it, and this should he treated as giving" it validity.
The answers to this are, if possible, even more conclusive. They are: First, that the Board has no power to elect except by ballot. There was never hut one ballot cast, and if that did not make it, no election could otherwise he made.
Second, the Board did not ratify it. On the contrary, four members voted to reconsider, and, therefore, against ratification, and four for it. This, at best, while unimportant, was not an affirmative; it was, at most, hut a tie, which the Mayor might, by his vote, have decided.
He did not choose to vote, hut, instead, declared the matter lost.
In both instances the Mayor refused or failed to vote, and contented himself with declaring that the results stood accomplished without his vote.
(We are not presenting the parliamentary question, or attempting to show that four against four would rescind any legal action. We are only showing that no majority ever in any way voted to ratify the election.)
The argument need not be repeated here that this meant nothing and accomplished nothing.
The law is that they could not make an election by ratification, and the fact is they did not.
We have seen that the Recorder has nothing to do with the election, either to make or declare or certify it under the charter. This whole paper, including indorsement, therefore goes for nothing. His statement in a paper that he was not required to make, that it was done by order of the Board, would not prove that fact of course, and no other evidence of it is offered. He may, and doubtless did, think himself authorized to make it, and may have been ordered to do so, but no such order is produced, and nothing else proves it.
The construction herein given to the charter regulating municipal elections and the action of municipal boards is not only sound in law but in policy. It would be of the most injni’ious consequence to hold that municipal bodies could make elections, or appropriate ' money, legislate rights away, or pass measures affecting vast property in
Reverse the decee and dismiss the bill with cost.
Dissenting Opinion
DISSENTING OPINION.
The charter of Knoxville provides : “ The Board of Education shall be elected by the Board of Mayor and Aldermen, from the citizens and qualified voters of the town, by ballot; and the. term of office of each member shall be five years.”
On January 27, 1888, the Board of Mayor and Aldermen met.
A motion “'to go into an election for a member of the City School Board to fill out the unexpired term of TIon. M. J. Condon, resigned,” was carried. There were present the Mayor and
The Mayor declared Lawrence elected. Motion to reconsider was lost.
Lawrence was notified of his election, and on January 31 took the oath óf office before the Recorder, having received from the Board a certificate of election.
The members of the Board of Education refused to permit Lawrence to sit and serve with them.
Whereupon he filed his bill, alleging his title to the office, asking that it be declared by decree, praying that defendants be required to give him notice of the meetings, and permit him to be present; that they be enjoined from meeting or transacting any business of the Board of Education without giving him notice and permitting him to be present and participate.
There was demurrer, which fully presents every question of jurisdiction in the Chancery Court, which was overruled — properly, as we hold.
There can be, in our opinion, no valid reason why a Chancery Court may not exercise its in-junctive powers to restrain an unlawful act, or, as here, what seemed to be a lawful act performed in an unlawful manner. The bill did not seek, nor the fiat restrain, the meetings of
It is difficult to sec why a Court having the power to prohibit action may and does not have the power, derived in the same way, to command action; the reason for the one applies with like force to the other. If the Court may restrain a wrong, it may command a right. Then, if complainant was a duly elected member of the Board, he was entitled to his voice therein, and the Chancery Court had the jurisdiction to enforce his claim.
So far the Court is a unit.
The question of his election arises. Under the facts stated, a majority is of opinion there was no such election as the charter contemplates, and, in support, rely, in part, on Section 220, second volume of Dillon on Municipal Corporations, which is: “In the absence of special provision, the 'major part of those present at a meeting . of a select body must concur in order to do any valid act.” This is construed to mean that the candidate must have a majority of the votes of all present entitled to a vote, and that, while the seven voting constituted a quorum for the transaction of any business of the Board, there was not the majority of all present, and, therefore, no
I do not assent to this conclusion, and am of opinion that, even under the rule laid down by Mr. Dillon, there was an election. There was no dissent to the motion for an election; therefore, to hold it, as was done, was a “ valid act,” to which there was a concurrence, not only of the “major part,” but of all present. If it Avas nec-essaiy that all the Aldermen present should vote, then I am of opinion such necessity was con formed to, and that eight votes were cast, although one of the ballots was a blank. If the blank can be regarded at all, it must be as an expression of indifference by the Alderman Avho cast it as between the two nominated candidates, and, therefore, as an expression of consent that he who should receive a majority of those actually voting should be the elected member of the Board of Education, and (if the blank Avas considered at all) such was the interpretation of the Mayor when he declared Lawrence elected. Such Avas the interpretation of, the Board in refusing to reconsider; and, also, in the unchallenged certificate of election, furnished by the Recorder, “by order of the Board,” with objection from no one.
To my mind it is clear that no account should be taken of the blank ballot, nor of the nominal presence of the Alderman who east it. lie might have retired from the room, in which event I understand it to be agreed that a majority of the
No weight should be attached to the fact that he voted for an election to be held at that meeting. That would not make him present for the election any more strongly than it would make him present for an election on the next or any subsequent day. Nothing can constitute a presence but participation. If there was participation, it was by acts signifying a full acquiescence in the action of the majority voting.
Judge Cooley, in his work on Constitutional Limitations, 3d Ed., Section 14, states the rule more strongly against the defendants than I have done. He says: “In most of the States a plurality of the votes cast determines the election; in others, as to some elections, a majority. But in determining upon
Under this rule the blank is not to be counted. The presence of him who cast it was not necessary to a quorum to make an election. If he had been in fact absent, it is admitted the election would have been lawful, and free from objection. If Judge Cooley is right, it follows that, although we may hold that the casting a blank ballot was a participation in the election, still complainant, having a majority of such number as was authorized to elect, was elected, notwithstanding the presence and participation of him who cast the blank, which is not to be counted. If there had been five present at the election, with three voting for one man and two for another, or two ■ voting blanks, or not voting at all, the election would have been complete. Here were seven actually voting, and one not, and we are asked to count the blank against the complainant. We may as well, by the same process of reasoning, count it for him. The juster rule is not to count it at all. It seems to me the rule cited from Judge Cooley is the oue this State should adopt in the first case of the kind arising in our Courts. The blank was nothing, should be counted for nothing; without it or its author there was a complete quorum, and their action should be affirmed. If a quorum
Under the rule laid down by the majority, it is put in the power of one man to defeat an election when he sees that his vote for his favorite will make a tie, as then the Mayor cannot cast his vote. So if he, the voter, desires a defeat, he can accomplish it by a blank.