Meixell v. Hellertown Borough Council

88 A.2d 594, 370 Pa. 420, 1952 Pa. LEXIS 358

Opinions

Opinion by

Mr. Justice Bell,

The court below sustained defendant’s preliminary objections to plaintiff’s complaint in mandamus and dismissed the complaint. From this order plaintiff has appealed.

Where those present and validly voting are sufficient to constitute a quorum, does the vote of a majority of those ballots which have been validly cast, legally bind the Council?

The Borough Council of Hellertown, consisting of 9 members, met to elect a Burgess.

* A Burgess receives a salary of $400 a year; a Councilman receives $10 for each regular monthly meeting he attends, a maximum of $120 a year. The only pertinent provision of the Act of July 10, 1947 (known as The Borough Code) P. L. 1621, §23, 53 P.S. 12891, provides as follows: “A majority of the entire membership of council shall constitute a quorum.” Two of the 9 councilmen- cast a questionable vote; each voted for himself for the office of Burgess. Each of these votes was undoubtedly illegal and void and therefore a nullity: Genkinger v. New Castle, 368 Pa. 547, 84 A. 2d 303; Reckner v. School District, 341 Pa. 375, 19 A. 2d 402; Com. v. Raudenbush, 249 Pa. 86, 94 A. 555; Com. ex rel. McCreary v. Major, 343 Pa. 355, 22 A. 2d 686. “It is a well and wisely established principle of public policy in Pennsylvania that a public official may not use his official power to further his own interests . . . and a councilman is disqualified from voting in any matter or proceedings where he has a direct personal or pecuniary interest** . . .”: Genkinger v. New Castle, 368 Pa. supra; and Ms vote is void: Com. v. Raudenbush, 249 Pa. supra; Reckner v. School District, 341 Pa. supra.

In Reckner v. School District, 341 Pa. supra, this Court held that a Director of a Third Class School District may not legally vote in favor of a resolution of the Board increasing his own salary as secretary thereof, and if his vote is the deciding vote, the resolution fails. Speaking through Justice (now Chief Justice) Drew, we said: “In Commonwealth v. Raudenbush, 249 Pa. 86, this Court held that a, councilman could not legally cast the deciding vote in favor of accepting his own resignation so that he might be employed by the city in a salaried position. It was there said: (pp. 88-89) ‘We are of opinion that Raudenbush could not vote for the acceptance of his own resignation which, therefore, never became effective. In 28 Cyc. 337, citing numerous authorities to sustain the text, it is said: “There is a general rule of law that no member of a governing body shall vote on any question involving his . . . pecuniary interest, if that be immediate, particular, and distinct from the public interest.” [‘A member of a municipal council is disqualified from voting in proceedings involving his personal or pecuniary interest: 20 Am. & Eng. Ency. of LaAV (2d ed.) 1214.’! It is against public policy for a representative of a municipality to vote in its legislative body on any matter which affects him individually.’ ”

In Com. ex rel. McCreary v. Major, 343 Pa. supra, this Court went so far as to hold that unless authorized by statute, public policy prohibits the members of Council from using their official appointing power as Councilmen to appoint themselves members of the Board of the Authority even though each individual member who was appointed to the Board did not vote for his own appointment. Mr. Justice Drew said, inter alia,, page 361, “A councilman cannot act for the municipality and at the same time act for himself individually . . . He is a trustee for the municipality and he may not deal with himself in any matter which concerns it [citing numerous supporting authorities] . . .”

Since the vote of 2 councilmen was illegal and void, neither their vote nor their presence should be counted in computing a quorum or a majority. “Members having an interest are generally excluded in counting a quorum.” McQuillen, Municipal Corporations, 3rd ed., vol. 4, Council Meeting, page 505; City of Fort Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558, 32 N. E. 215; Oconto County v. Hall, 47 Wis. 208, 2 N. W. 291; Woodward v. City of Wakefield, 236 Mich. 417, 210 N. W. 322.

“Ballots which have been cast, but which on account of their marking or other reason cannot be counted as votes, should be excluded . . . and not be considered in determining whether the proposition has received the requisite majority ...” 29 C. J. S. 352, §242.

“As a general rule, all the votes cast in the manner specified by law, by duly qualified voters, must be counted. The rule applies, in the absence of fraud or a valid statute to the contrary .... It does not apply, however, where the ballot or vote is for any reason invalid or void . . .”: 29 C. J. S. 329, §227.

“The weight of authority adheres to the view that . . . blank and illegal ballots should be rejected in computing the number of votes.” 18 Am. Jur. 342, §246.

That left 7 valid votes — more than a quorum. Of those 7 qualified and valid votes, 4 voted for Meixell for Burgess, 2 for Councilman Judd, and 1 for Councilman Abel. A quorum- being present and legally voting, and Meixell having received a majority of all the iegal votes cast, he was duly elected Burgess. ' This is consonant with every-day experience and common sense and is supported by decisions of this Court and by leading text writers and authorities from many of the highest courts of our sister states: Com. ex rel. Fortney v. Wozney, 326 Pa. 494, 192 A. 648; Commonwealth v. Fleming, 23 Pa. Superior Ct. 404; 29 C. J. S. 329, §227; 352, §242; 18 Am. Jur. 342, §246; McQuillen, Municipal Corp., 3rd ed., vol. 4, p. 505; City of Fort Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558, 32 N. E. 215; Oconto County v. Hall, 47 Wis. 208 2 N. W. 291; Woodward v. City of Wakefield, 236 Mich. 417, 210 N. W. 322; State of Washington ex rel. Short v. Clausen, 72 Wash. 409, 130 Pac. 479; Murdoch v. Strange, 99 Md. 89, 57 A. 628; People ex rel. Beasley v. Sausalito, 106 Cal. 500, 39 Pac. 937; Hickes v. Krigbaum, 13 Ariz. 237, 108 Pac. 482; State ex rel. Hocknell v. Roper, 47 Neb. 417, 66 N. W. 539; Launtz v. People, 113 Ill. 137; Attorney-General v. Shepard, 62 N. H. 383; Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 6 A. L. R. 315; State v. Green, 37 Ohio State 227; State v. Oeliesseline, 1 McCord (S. C.) 52. No authority has been cited to support the contrary view.

Appellee contends that Meixell must receive a majority of the votes of the entire membership of Council or at least of a majority of those present at the meeting, including those whose votes were illegal. In other words, Meixell must receive 5 votes. No authority is cited to support this proposition, perhaps for the persuasive reason that if such a contention were to prevail,' one or a relatively few persons could, by their intentional absence from, or by their presence at a meeting and their failure to vote, or their casting a blank or illegal ballot, block indefinitely an important election or important legislation and thus paralyze government with obviously great harm to the public interest.. The principle or policy thus contended for by appellee' is' contrary to the prior decisions of this Court as well; as to many text authorities and authorities from our sister states. For example, in Com. ex rel. Fortney v. Wozney, 326 Pa. 494, 192 A. 648, a vacancy existed in a borough council composed of 7 members. Council held a special meeting on March 11th and elected appellant by a vote of 3 to 2. The election was held valid by this Court which, in its opinion, said: “The meeting of March 11th was attended by five of the regularly elected members of council. This constituted a quorum. At this meeting three of the five councilmen voted for appellant. This being a majority of the members present was sufficient for his election: Commonwealth v. Fleming, 23 Pa. Superior Ct. 404; Brackville Borough Council, 308 Pa. 579.” This case is analogous on its facts and in principle controls and rules the present case.

Commonwealth v. Fleming, 23 Pa. Superior Ct. 404, is likewise analogous. The Borough Council of Rochester was composed of twelve members and under the code a majority constituted a quorum. At an adjourned meeting, at which 10 of the 12 council members were present, a motion was made to elect a member to fill a vacancy. The motion received 6 affirmative votes and no negative votes and consequently was carried. In the election, Moulds received 5 votes, Dowell 2 votes, and the other 3 councilmen abstained from voting. The Court held that Moulds received a majority vote; that he was duly elected to fill the vacancy; and that mandamus was the appropriate remedy for the relief prayed for. The Court, in its opinion, said, page 408: “A quorum being present, this was authorized to transact any business which might lawfully come before the body in the absence of special limitations or restrictions upon that power. It is a rule of the common law and'generally óf all parliamentary bodies that when a quorum is .present the act of a majority of the quorum is the act of the body: 2 Kent’s Com. 293; Buell v. Buckingham, 16 Iowa 284; 2 Cook’s Corp., sec. 713a; 1 Dillon on Municipal Corp., secs. 216, 217; United States v. Ballin, 144 U. S. 1 (12 Sup. Ct. Repr. 507).” This case is on its facts likewise analogous to the instant case.

“The decided weight of authority is to the effect that ballots improperly cast, or rejected because of illegality or unintelligibility, cannot be counted in determining the total vote cast.... Such ballots are simply nullities.” Washington ex rel. Short v. Clausen, 72 Wash. 409, 130 Pac. 479.

In Wightman v. Tecumseh, 157 Mich. 326, 122 N. W. 122, where the question was whether a measure was carried by the necessary two-thirds vote, a similar contention to that made here by appellee was rejected by that court, which said, page 124: “[Complainant] insists that the legal electors voted these ballots [which were rejected], and therefore they should be counted in estimating the two-thirds vote. In other words, he insists that these votes were valid for one purpose, but void for all others. The position is untenable .... A void vote is of no more effect than no vote ”

Derringe v. Donovan, 308 Pa. 469, 162 A. 439, is clearly distinguishable. In that and subsequent cases, this Court held that a dead man could run for and be elected to public office and that votes for him were valid and should be counted. The obvious distinction is that in such a case the votes for the dead man were valid and hence countable, while in this case the votes by each of two councilmen for himself were illegal and void and hence uncountable.

This case involves the election of a public official. It is common knowledge that in a presidential, state or municipal election, in computing the total number of votes cast,.or whether one candidate received a majority or a plurality, or in determining \ylietlier an amendment or a bond issue received a certain requisite percentage of the total vote, neither the illegal ballots nor the qualified non-voting electors are counted or included in such computation.

We deem it unnecessary to discuss any of the other contentions made by appellee.

The judgment of the court below is reversed and Althrope Meixell is declared to have been elected Burgess of Hellertown.

A. vacancy existed in this office because of the resignation 'of the former Burgess. ■

Italics throughout, ours.