The merger contract, when submitted to the defendant for his approval, had attached thereto the affidavit of Frances E. Burns, great commander, and of Emma E. Bower, great record keeper, of the plaintiff society, in which the resolution approving of the merger and adopting the contract was set out at length. Then followed:
"That upon a vote being taken thereon, the foregoing resolution was adopted by the votes of two-thirds of the members of the special review, as announced by the tellers, declared so carried by the presiding officer, and thereafter reduced to writing, which was read and approved by the entire body, and in open review signed by the great commander and the great record keeper, without any objection thereon."
The affidavits of A.W. Fry, supreme commander, and S.W. Hall, supreme record keeper, of the Maccabees,
wherein it was stated that the merger contract had been approved by the unanimous vote of the supreme governing body of that society, were also attached.
Counsel for the plaintiffs insist that the defendant had no right to go behind these affidavits and attempt to ascertain for himself whether the contract had been approved in the manner required by the statute.
Following the provision quoted by Mr. Justice WIEST, the statute reads:
"The commissioner of insurance shall thereupon consider such contract of consolidation, merger or reinsurance, and, if satisfied that the interests of the certificate holders of such fraternal benefit societies are properly protected, and that such contract is just and equitable to the members of each of such societies, and that no reasonable objection exists thereto, shall approve said contract as submitted. In case the parties corporate to such contract shall have been incorporated in separate States, or Territories, such contract shall be submitted as herein provided to the commissioner of insurance of each of such incorporating States, or Territories, to be considered and approved separately by each of such commissioners of insurance. When said contract of consolidation, merger or reinsurance shall have been approved as hereinabove provided, such commissioner or commissioners of insurance shall issue a certificate to that effect, and thereupon the said contract of consolidation, merger or reinsurance shall be in full force and effect. In case such contract is not approved the fact of its submission and its contents shall not be disclosed by the commissioner of insurance."
It appears from the record that when the contract, with the affidavits annexed, was presented to the defendant for his approval, he fixed a date for hearing it and at his request a certified copy of the proceedings of the plaintiff society at which the contract was approved was furnished to him.
In my opinion, he had no authority under the statute
to make such a request, nor, upon the copy of the proceedings being furnished him, to determine the legality of the action taken. The statute does not in terms confer any power upon him to review the proceedings. When the contract with the certificates of the officers of the two societies showing its approval by each of them was presented to the commissioner, his duty is clearly pointed out in the statute. If he be satisfied "that the interests of the certificate holders * * * are properly protected;" that the "contract is just and equitable" to the members, and that "no reasonable objection exists thereto," he "shall approve" it. This provision is mandatory.
"When the word 'shall' is used in a command to a public official, it excludes the idea of discretion." People v. De LaMater, 213 Mich. 167, 171.
See, also, Thiedemann v. Dental Examiners, 214 Mich. 369.
The last sentence of the section above quoted would seem to negative his right to hold a public hearing.
Defendant's refusal to approve the contract was based solely upon the fact that it had not been approved by a two-thirds vote of the plaintiff's governing body, as required by the statute. The record of plaintiff's meeting showed that there were 298 persons present and entitled to a seat and vote in that body. Defendant was of the opinion that at least two-thirds of that number must have voted in favor of approval to comply with the statute. The one blank vote on which the opinion of Mr. Justice WIEST hinges was not considered by him.
I concur in holding that "approval of the merger could be had by a vote of two-thirds of a quorum." The record does not disclose the number present when the vote was taken. The blank ballot might in some way have been folded in with one cast by a member in voting. It is surely quite as reasonable to so infer
as to assume that a member present and entitled to vote did not desire to do so and used the blank ballot to conceal her inclination in that respect. But if it be conceded that the blank ballot was cast by a member present and entitled to vote, its presence in the box did not, in my opinion, affect the result of the vote as announced. If the statute requires a two-thirds vote of those present, then the entire 298 must be counted, for the record shows that there were that number "present and entitled to a seat and vote in the supreme body." The members present constituted more than a quorum of the legislative or governing body of the society. They met to take action upon the merger contract. Approval required a vote of two-thirds of a quorum of the legislative or governing body there assembled. One or more members by declining to vote could not prevent affirmative action by those voting. More than a quorum voted, and two-thirds of those who voted yielded their assent to the merger, and, in my opinion, satisfied the statute. Those present, and not voting, could not by their silence and inaction prevent those voting from expressing the will of the entire body when lawfully assembled.
The conclusion thus reached is in harmony with the holding inMissouri Pacific R. Co. v. Kansas, 248 U.S. 276
(39 Sup. Ct. 93, 2 A.L.R. 1589). The question there presented involved a construction of the provision of the Constitution requiring a vote of two-thirds of each house to pass a bill over a veto of the President. It was held that a vote of "two-thirds of a quorum of each house, i. e., of a majority of its members (Art. 1, § 5), not two-thirds of all the members of the body," was all that was needed. The court quoted approvingly the ruling of Speaker Reed of the national house of representatives, in which he said:
"Among the business that comes before the house is the consideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the house is present the house is constituted and two-thirds of those voting are sufficient in order to accomplish the object."
There is no intimation that two-thirds of those present must vote in the affirmative to carry the question. In United States
v. Ballin, 144 U.S. 1, 5 (12 Sup. Ct. 507), Mr. Justice Brewer, speaking for the court, said:
Free access — add to your briefcase to read the full text and ask questions with AI
The merger contract, when submitted to the defendant for his approval, had attached thereto the affidavit of Frances E. Burns, great commander, and of Emma E. Bower, great record keeper, of the plaintiff society, in which the resolution approving of the merger and adopting the contract was set out at length. Then followed:
"That upon a vote being taken thereon, the foregoing resolution was adopted by the votes of two-thirds of the members of the special review, as announced by the tellers, declared so carried by the presiding officer, and thereafter reduced to writing, which was read and approved by the entire body, and in open review signed by the great commander and the great record keeper, without any objection thereon."
The affidavits of A.W. Fry, supreme commander, and S.W. Hall, supreme record keeper, of the Maccabees,
wherein it was stated that the merger contract had been approved by the unanimous vote of the supreme governing body of that society, were also attached.
Counsel for the plaintiffs insist that the defendant had no right to go behind these affidavits and attempt to ascertain for himself whether the contract had been approved in the manner required by the statute.
Following the provision quoted by Mr. Justice WIEST, the statute reads:
"The commissioner of insurance shall thereupon consider such contract of consolidation, merger or reinsurance, and, if satisfied that the interests of the certificate holders of such fraternal benefit societies are properly protected, and that such contract is just and equitable to the members of each of such societies, and that no reasonable objection exists thereto, shall approve said contract as submitted. In case the parties corporate to such contract shall have been incorporated in separate States, or Territories, such contract shall be submitted as herein provided to the commissioner of insurance of each of such incorporating States, or Territories, to be considered and approved separately by each of such commissioners of insurance. When said contract of consolidation, merger or reinsurance shall have been approved as hereinabove provided, such commissioner or commissioners of insurance shall issue a certificate to that effect, and thereupon the said contract of consolidation, merger or reinsurance shall be in full force and effect. In case such contract is not approved the fact of its submission and its contents shall not be disclosed by the commissioner of insurance."
It appears from the record that when the contract, with the affidavits annexed, was presented to the defendant for his approval, he fixed a date for hearing it and at his request a certified copy of the proceedings of the plaintiff society at which the contract was approved was furnished to him.
In my opinion, he had no authority under the statute
to make such a request, nor, upon the copy of the proceedings being furnished him, to determine the legality of the action taken. The statute does not in terms confer any power upon him to review the proceedings. When the contract with the certificates of the officers of the two societies showing its approval by each of them was presented to the commissioner, his duty is clearly pointed out in the statute. If he be satisfied "that the interests of the certificate holders * * * are properly protected;" that the "contract is just and equitable" to the members, and that "no reasonable objection exists thereto," he "shall approve" it. This provision is mandatory.
"When the word 'shall' is used in a command to a public official, it excludes the idea of discretion." People v. De LaMater, 213 Mich. 167, 171.
See, also, Thiedemann v. Dental Examiners, 214 Mich. 369.
The last sentence of the section above quoted would seem to negative his right to hold a public hearing.
Defendant's refusal to approve the contract was based solely upon the fact that it had not been approved by a two-thirds vote of the plaintiff's governing body, as required by the statute. The record of plaintiff's meeting showed that there were 298 persons present and entitled to a seat and vote in that body. Defendant was of the opinion that at least two-thirds of that number must have voted in favor of approval to comply with the statute. The one blank vote on which the opinion of Mr. Justice WIEST hinges was not considered by him.
I concur in holding that "approval of the merger could be had by a vote of two-thirds of a quorum." The record does not disclose the number present when the vote was taken. The blank ballot might in some way have been folded in with one cast by a member in voting. It is surely quite as reasonable to so infer
as to assume that a member present and entitled to vote did not desire to do so and used the blank ballot to conceal her inclination in that respect. But if it be conceded that the blank ballot was cast by a member present and entitled to vote, its presence in the box did not, in my opinion, affect the result of the vote as announced. If the statute requires a two-thirds vote of those present, then the entire 298 must be counted, for the record shows that there were that number "present and entitled to a seat and vote in the supreme body." The members present constituted more than a quorum of the legislative or governing body of the society. They met to take action upon the merger contract. Approval required a vote of two-thirds of a quorum of the legislative or governing body there assembled. One or more members by declining to vote could not prevent affirmative action by those voting. More than a quorum voted, and two-thirds of those who voted yielded their assent to the merger, and, in my opinion, satisfied the statute. Those present, and not voting, could not by their silence and inaction prevent those voting from expressing the will of the entire body when lawfully assembled.
The conclusion thus reached is in harmony with the holding inMissouri Pacific R. Co. v. Kansas, 248 U.S. 276
(39 Sup. Ct. 93, 2 A.L.R. 1589). The question there presented involved a construction of the provision of the Constitution requiring a vote of two-thirds of each house to pass a bill over a veto of the President. It was held that a vote of "two-thirds of a quorum of each house, i. e., of a majority of its members (Art. 1, § 5), not two-thirds of all the members of the body," was all that was needed. The court quoted approvingly the ruling of Speaker Reed of the national house of representatives, in which he said:
"Among the business that comes before the house is the consideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the house is present the house is constituted and two-thirds of those voting are sufficient in order to accomplish the object."
There is no intimation that two-thirds of those present must vote in the affirmative to carry the question. In United States
v. Ballin, 144 U.S. 1, 5 (12 Sup. Ct. 507), Mr. Justice Brewer, speaking for the court, said:
"The Constitution provides that 'a majority of each (house) shall constitute a quorum to do business.' In other words, when a majority are present the house is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. All that the Constitution requires is the presence of a majority, and when that majority are present the power of the house arises."
If it be assumed that the blank ballot was cast by a person present and entitled to vote, it could not be counted. InWightman v. Village of Tecumseh, 157 Mich. 326, it was held (syllabus):
"Votes at a special election to authorize a bond issue, which bear distinguishing marks, are invalid for any purpose and should not be counted in determining the two-thirds majority."
In the opinion it was said (page 331): "A void vote is of no more effect than no vote."
In McCrary on Elections (4th Ed.), § 208, it is said:
"In such a case the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot box, and the courts will not go outside of that to inquire whether there were other persons entitled to vote who did not do so."
See, also, Stebbins v. Judge of Superior Court, 108 Mich. 693; Shearer v. Board of Sup'rs of Bay Co., 128 Mich. 552.
It may be urged, and with force, that the rule applying to elections is not applicable to the vote of a legislative body, but it is persuasive as to the effect of the omission of a person to vote who is present and entitled to do so.
The decision in Brown v. Nash, I Wyo. 85, hinged upon the fact that the record affirmatively showed the presence of the speaker. He had asked to be excused from voting. He announced the vote, and the passage of the bill. It was, however, said:
"Now, if one of the members on the floor had asked to be excused, and had been so excused, there would perhaps have been nothing to show his presence, and the vote would have been complete."
If necessary, the writ will issue as prayed. No costs will be allowed.
CLARK and McDONALD, JJ., concurred with SHARPE, J.