The opinion of the court was delivered by
Dixon, J.
On November 17th, 1902, the finance committee -of the Long Branch commissioners submitted to the- commission a proposed contract between that body and the Tintern Manor Water Company, by which the company was to have the exclusive privilege of supplying the commission with water for municipal purposes during a period of. ten years, at stated annual rentals to be paid by the commission. At a meeting of the board on November 24th, Commissioner Van Note offered a resolution directing the president and clerk of the commission to sign and seal the contract as the act and deed of the commission, which was seconded, and moved [304]*304that the roll be called on its adoption. Thereupon the president stated that he was opposed to 'the resolution and declared it out of order, from which ruling an appeal was duly taken and the ruling was reversed. The president then declined to put the question on the adoption of the resolution, whereupon Commissioner Van Note moved that Commissioner Parker act as temporary chairman, and this motion, being seconded, and put by the clerk, was carried. Commissioner Parker then put the question on the adoption of the resolution, and it was carried. Oar aaone of these anotioaas were the yeas and nays taken aard recorded.
On Gerkiomri to review this action of the commission the Supreme Court adjudged it legal, aard the present writ of error is brought to reverse this judgment.
The first claian of the plaintiff in error now open for consideration is that, although the permanent chairman refused to put the proposed question to a vote, yet while he was present it was unlawful for the commission to adopt any other method of obtaining a vote on the question without first formally trying the chairman for malfeasance and removing him from office.
Under the act to establish the Long Branch police, sanitary and improvement comonission (Pamph. L. 1867, p. 976), and its supplements (Pamph. L. 1869, p. 998; Pamph. L. 1875, p. 477), the board of eommissioaaers is directed to “organize by electing a chairman from among themselves,” and is empowered to determine the rules of its own proceedings. Various powers are given to the commissioner chosen as chairman, who, in respect to those powers, is styled “president,” but’ aaone of these powers relate to his functions as chairman of the board.
By the standing rules and orders of the commission, enacted by ordinance June 2d, 1890, it is provided that the commissioners shall elect one of their number “who shall be president of the board and also anayor of the city for the ensuiaag year;” that, “in the absence of the president from any meetiaag of the board, the anembers shall choose a temporary president to preside until the president appears,” and that “it shall be [305]*305the duty of the president to preside at all meetings of the board, preserve order and-decorum therein, and enforce'at airtimes the provisions of the charter, of the by-laws and the rules of debate.”
Inasmuch as the statutes give to the commissioner chosen by the board to preside at its meetings no powers or rights in those meetings other than such as are implied in his designation as chairman, and as the provisions of the standing rules are equally limited, it is evident that we'must test the legality of the conduct by which he was temporarily superseded as chairman by the general rules applicable in such a juncture. This eliminates from consideration the decision in Billings v. Fielder, 15 Vroom 381, which resulted from the peculiar authority conferred by statute upon the director-at-large in his function as chairman of the board of freeholders.
The general doctrine regarding the authority of one chosen to preside over a deliberative body was vividly stated on a memorable occasion, when in 1642 the king entered the House of Commons to compel the arrest of the five members whom before the peers he had accused of treason. To his demand whether they were present in the House, addressed to Speaker Lenthall, the latter answered: “I have neither eyes to see nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here.” The same metaphors had previously been used by Speaker G-lanvylle, who declared himself to be “the mouth, indeed the servant of all the rest of the members of the House, to collect faithfully and readily the vote and genuine sense of a numerous assembly,” and also in the House itself where the speaker was designated as “but the servant to the House and not a master or a master’s mate.”
This view is approved by writers on parliamentary law. 2 Hats. Free. Par. 230; Gush. Law <& Pr. Legis. Assem., § 294. It appears reasonable, when it is remembered that the authority of a chairman is derived wholly from the assembly itself, and that he is only a means provided for enabling the body to exercise its powers in an orderly way. His functions are utterly unimportant” save as they are auxiliary to that end. [306]*306When, therefore, his conduct in any particular case has no other aim. and effect than to thwart the purpose which his office is designed to assist, there must reside in the assembly a right to 'pass him by and proceed to action otherwise. This right is but a branch of the power which assemblies exert in choosing temporary officers when the permanent officers are absent. It is not their absence which justifies the exercise of the power, but the fact that they are not performing the duties necessary for the proper fulfillment of the functions of the assembly. Inability or refusal to perform those duties has the same effect as absence in suspending the ordinary functions of the convention, and equally warrants the selection of a temporary chairman. The power is inherent and inseparably attached to the right of the body to convene and act. It is exercisable, when not restrained by some extrinsic law, at the will of the body. Jeff. Man. 36; Cush Law & Pr. Legis. Assam., § 299.
In Billings v. Fielder, ubi supra, Mr. Justice Van Syckel said:‘“When the director is necessarily or willfully absent from the meetings of the board, then ex necessitate, the general rule of parliamentary law which governs legislative bodies must apply, so far as to enable the board to elect a presiding officer pro' tempore to conduct its deliberations in due and orderly form;” and in a subsequent clause he coupled with the absence of the director his refusal to act in his official capacity at a meeting of the board. Similarly, in State w. Lasher, 12 Atl. Rep. 636, the Supreme Court of Connecticut recognized the right of a deliberative board to have any member act in place of its regular chairman, when the latter attempts to thwart its will. For the purpose of thus, selecting a temporar3r chairman the clerk of the body usually puts the necessary questions. Cush. Law £ Pr. Legis. Assam,., § 315.
We therefore are of opinion that it was lawful for Commissioner Parker to act as chairman of the meeting on the occasion in question.
It remains to consider whether the action of the board in the adoption of the resolution was legal. Its legality is denied because the yeas-and nays were not taken and recorded.
The standing rules, adopted by ordinance under the express [307]
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The opinion of the court was delivered by
Dixon, J.
On November 17th, 1902, the finance committee -of the Long Branch commissioners submitted to the- commission a proposed contract between that body and the Tintern Manor Water Company, by which the company was to have the exclusive privilege of supplying the commission with water for municipal purposes during a period of. ten years, at stated annual rentals to be paid by the commission. At a meeting of the board on November 24th, Commissioner Van Note offered a resolution directing the president and clerk of the commission to sign and seal the contract as the act and deed of the commission, which was seconded, and moved [304]*304that the roll be called on its adoption. Thereupon the president stated that he was opposed to 'the resolution and declared it out of order, from which ruling an appeal was duly taken and the ruling was reversed. The president then declined to put the question on the adoption of the resolution, whereupon Commissioner Van Note moved that Commissioner Parker act as temporary chairman, and this motion, being seconded, and put by the clerk, was carried. Commissioner Parker then put the question on the adoption of the resolution, and it was carried. Oar aaone of these anotioaas were the yeas and nays taken aard recorded.
On Gerkiomri to review this action of the commission the Supreme Court adjudged it legal, aard the present writ of error is brought to reverse this judgment.
The first claian of the plaintiff in error now open for consideration is that, although the permanent chairman refused to put the proposed question to a vote, yet while he was present it was unlawful for the commission to adopt any other method of obtaining a vote on the question without first formally trying the chairman for malfeasance and removing him from office.
Under the act to establish the Long Branch police, sanitary and improvement comonission (Pamph. L. 1867, p. 976), and its supplements (Pamph. L. 1869, p. 998; Pamph. L. 1875, p. 477), the board of eommissioaaers is directed to “organize by electing a chairman from among themselves,” and is empowered to determine the rules of its own proceedings. Various powers are given to the commissioner chosen as chairman, who, in respect to those powers, is styled “president,” but’ aaone of these powers relate to his functions as chairman of the board.
By the standing rules and orders of the commission, enacted by ordinance June 2d, 1890, it is provided that the commissioners shall elect one of their number “who shall be president of the board and also anayor of the city for the ensuiaag year;” that, “in the absence of the president from any meetiaag of the board, the anembers shall choose a temporary president to preside until the president appears,” and that “it shall be [305]*305the duty of the president to preside at all meetings of the board, preserve order and-decorum therein, and enforce'at airtimes the provisions of the charter, of the by-laws and the rules of debate.”
Inasmuch as the statutes give to the commissioner chosen by the board to preside at its meetings no powers or rights in those meetings other than such as are implied in his designation as chairman, and as the provisions of the standing rules are equally limited, it is evident that we'must test the legality of the conduct by which he was temporarily superseded as chairman by the general rules applicable in such a juncture. This eliminates from consideration the decision in Billings v. Fielder, 15 Vroom 381, which resulted from the peculiar authority conferred by statute upon the director-at-large in his function as chairman of the board of freeholders.
The general doctrine regarding the authority of one chosen to preside over a deliberative body was vividly stated on a memorable occasion, when in 1642 the king entered the House of Commons to compel the arrest of the five members whom before the peers he had accused of treason. To his demand whether they were present in the House, addressed to Speaker Lenthall, the latter answered: “I have neither eyes to see nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here.” The same metaphors had previously been used by Speaker G-lanvylle, who declared himself to be “the mouth, indeed the servant of all the rest of the members of the House, to collect faithfully and readily the vote and genuine sense of a numerous assembly,” and also in the House itself where the speaker was designated as “but the servant to the House and not a master or a master’s mate.”
This view is approved by writers on parliamentary law. 2 Hats. Free. Par. 230; Gush. Law <& Pr. Legis. Assem., § 294. It appears reasonable, when it is remembered that the authority of a chairman is derived wholly from the assembly itself, and that he is only a means provided for enabling the body to exercise its powers in an orderly way. His functions are utterly unimportant” save as they are auxiliary to that end. [306]*306When, therefore, his conduct in any particular case has no other aim. and effect than to thwart the purpose which his office is designed to assist, there must reside in the assembly a right to 'pass him by and proceed to action otherwise. This right is but a branch of the power which assemblies exert in choosing temporary officers when the permanent officers are absent. It is not their absence which justifies the exercise of the power, but the fact that they are not performing the duties necessary for the proper fulfillment of the functions of the assembly. Inability or refusal to perform those duties has the same effect as absence in suspending the ordinary functions of the convention, and equally warrants the selection of a temporary chairman. The power is inherent and inseparably attached to the right of the body to convene and act. It is exercisable, when not restrained by some extrinsic law, at the will of the body. Jeff. Man. 36; Cush Law & Pr. Legis. Assam., § 299.
In Billings v. Fielder, ubi supra, Mr. Justice Van Syckel said:‘“When the director is necessarily or willfully absent from the meetings of the board, then ex necessitate, the general rule of parliamentary law which governs legislative bodies must apply, so far as to enable the board to elect a presiding officer pro' tempore to conduct its deliberations in due and orderly form;” and in a subsequent clause he coupled with the absence of the director his refusal to act in his official capacity at a meeting of the board. Similarly, in State w. Lasher, 12 Atl. Rep. 636, the Supreme Court of Connecticut recognized the right of a deliberative board to have any member act in place of its regular chairman, when the latter attempts to thwart its will. For the purpose of thus, selecting a temporar3r chairman the clerk of the body usually puts the necessary questions. Cush. Law £ Pr. Legis. Assam,., § 315.
We therefore are of opinion that it was lawful for Commissioner Parker to act as chairman of the meeting on the occasion in question.
It remains to consider whether the action of the board in the adoption of the resolution was legal. Its legality is denied because the yeas-and nays were not taken and recorded.
The standing rules, adopted by ordinance under the express [307]*307authority of the charter, as before stated, provide that “on every vote relating to any special appropriation the yeas and nays shall be taken and recorded.” This rule was as binding upon the commission and its members as any statute or other law of the commonwealth. Hopkins v. Mayor of Swansea, 4 M. & W. 621; Heland v. Lowell, 3 Allen 407; Presbyterian Church v. New York City, 5 Cow. 538; Bradshaw v. Camden, 10 Vroom 416; 1 Dill. Mun. Corp. (4th ed.), § 308. Its importance is manifest. It is designed to secure, in matters relating to the public funds, deliberate action on the part of each commissioner, and immediate as well as permanent public evidence thereof, readily accessible to the voters of the municipality, on which their representatives may be held responsible. 1 Bill. Mun. Corp. (4dh ed.), § 291; 20 Am.. & Eng. Encycl. L. (2d ed.) 1214. It cannot be dispensed-with, except in accordance with the standing rules, and no attempt was made to set it aside. Indeed, compliance with it' was called for when the resolution was put fully before the board. Nor can the testimony of the commissioners or of bystanders be accepted as a substitute for it, because such testimony cannot completely supply its place. Morrison v. City of Lawrence, 98 Mass. 219.
'We regard this resolution as coming within the terms of the rule. Although it did not directly make a “special appropriation” of public moneys, yet, if carried out, it bound the municipality to payments which could be met only by “special appropriations,” and thus, in a fair sense, related to such appropriations.
For failure to take and record the yeas and nays, we think the resolution was not lawfully passed, and should be set aside.
Let the judgment of the Supreme Court be reversed, and a judgment be entered in accordance with the foregoing opinion.
For affirmance—None.
For reversal—Ti-ie Chancellor, Chibe Justice, Van Syokel, Dixon, Garrison, Garretson, Hendrickson; Pitney, Swayze, BoCtErt,Vredenburgi-i,Voori-iees, Vroom. 13.