Stanford v. . EllingtonStanford v. . Ellington
- Reporters:
- , ,
- Before:
- Furches
Under the view we take of the case it is not necessary for us to consider or pass upon defendant‘s right to this office. The plaintiff‘s right to recover depends upon his right to the office. If he is not entitled to it, it is a matter of no importance to him who is. It is true (160) that if plaintiff is entitled to the office, it necessarily follows that defendant is not; but it does not necessarily follows that defendant is entitled to it if plaintiff is not.
Prior to 13 March, 1895, the Board of Trustees of the State Library under existing law elected to and filled this office. On that day (13 March, 1895) the Legislature passed and ratified an act repealing the law authorizing the board of trustees to elect, and provided for the election of this officer by the Legislature. And on the same day, to-wit, 13 March, 1895, the plaintiff claims that he was duly elected State Librarian by the Legislature pursuant to said act. And this not being a bill enacted into a law, ratified and signed by the presiding officers of Senate and House and deposited in the office of Secretary of State, which then becomes the evidence of its passage (Carr v. Hoke, 116 N.C. 223; U.S. v. Ballin, 144 U.S. 4), it becomes necessary for plaintiff to introduce the records of the Legislature for the purpose of proving his election and right to the office he was claiming. These records show
The original purpose of a division was for the purpose of ascertaining who voted “Aye” and who voted “No,” and it was effected in this way: the ayes occupied one part of the hall and the noes another and there remained until the tellers appointed counted them. In this way it came to be called a division. In more modern assemblies it is more usually effected by a call of the house, a yea or nay vote when each member‘s name is called. Cushing, sec. 1615. This mode is used for two purposes, one to determine on which side the majority voted and also for the purpose of determining whether there is a quorum present. U.S. v. Ballin, supra. In this case there was no viva voce vote preceding the roll call. With this exception there seems to have been all done that is usually done before a division, which is now usually had by a call of the roll. Cushing, sec. 1615. Why this was not done we do not know.
But it seems to be conceded that the Speaker of the House of Representatives of the United States could not compel a member to vote. Nor had he any right to count members present and not voting, to make a quorum, until the House adopted a rule to that effect. He then counted nonvoting members present to make up a quorum, and the Supreme Court of the United States sustained his action. U.S. v. Ballin, 144 U.S. 1. So may the Legislature of North Carolina adopt a similar rule, as there is nothing in the Constitution to prevent its doing so. But it has not adopted such a rule, and under the authority of U.S. v. Ballin, supra, we suppose the presiding officers were powerless, if a quorum was actually present, either to make them vote or to count them to make up a quorum. This brings us to the consideration of what is a quorum. They are of two kinds, one fixed by the Constitution or power creating the body or assembly. In this way a majority of a majority may constitute a quorum and do business. But where (163) the quorum is not fixed by the Constitution or the power that creates the body, the general rule is that a quorum is a majority of all the members (Cotton Mills v. Commissioners, 108 N.C. 678; Cushing, sec. 247; U.S. v. Ballin, supra), and a majority of this majority may legislate and do the work of the whole. There is no constitutional quorum, that is, a number prescribed by our Constitution that shall constitute a quorum. We therefore fall under the general rule applying to legislative bodies. U.S. v. Ballin, supra.
The Legislature of North Carolina consists of 170 members, fifty in the Senate and one hundred and twenty in the House. Therefore it takes the presence of 26 Senators to constitute a quorum in the Senate and 61 members of the House. In this election 26 Senators voted, which was a majority of that body, and a quorum. But in the House there were but 48 members who voted. This, we see, was less than a quorum. For this reason plaintiff has failed to establish his right to the office.
There were various questions presented as to the defendant‘s rights. But the view we have taken of the case makes it unnecessary for us to consider them, and we do not. The judgment of the court below is
Affirmed.