The Indianapolis journal., 1890-02-01
PRESENT BUT NOT VOTING
1t Is Very Good in Law 10 Support a
Quorum for All Legislative Purposes.
A Decision Of the Indiana Supreme Court Ap-
plying Directly to Speaker Reeds Position
and Sustaining Him on All Points.

The position of Speaker Reed, of the ma
tional House Of Representatives,, in main-
tanning a quorum with members present
and not voting is supported by precedents
in the Indiana Legislature. ut has always
been the rule in this State" said Leon o.
Bailey. last night. that members present
and not voting should be considered
present Congressman Bynum was
Speaker in the Legislature of 1888,
and the Metropolitan police bill was,
in the Senate. opposed by Repub-
licans. He. in supporting the Democratic
plan in the House of keeping q quorum of
that body ready to receive the police bill
from the Senate when it was passed. had
the Republicans recorded as present and
not voting. 1t was during the memorable
all-night sessions of both Senate
and House when this occurred. In
the contest over the lieutenant-governor-
ship, in 1887, the Republican Senators
during the dead lock were present and re-
fused to vote. Green smith. the presiding
officer, had them recorded as being present
and not voting The ruling is right, for If
it was otherwise the minority could block
all legislation"
The precedents thus formed in this State.
and which are being followed by Speaker
Reed have higher authority than parliament
tary law to sustain them. On the 10th of last
December an opinion was given by Judge
Elliott of the Indiana Supreme COurt. the
other Judges asserting. that bears directly
on this question. IL was delivered In the
case of the Nashville Gas Company against
the city of Nashville. There was involved
the question of a quorum, and the respOn-
sibility resting on those IN embers of the
City Council who refused to vote on q resO-
luton relative to an electric-light plant.
The opinion was as follows:
The Mayor OF the city of Rushvie appointed
committee, composed of the members of the
Common Council, to investigate and report upon
the question OF the expediency OF buying an
eiectric-light plant and machinery. The com
mittee in due time reported TO the Common
Council IN favor or making the purchase On
the Sd day of April. 1889, action was taken on
the report, at regular meeting, at which all or
the members of the Common Council were pres
ent. and the following resolution was introduced:
Resolved. That the report OF the special COM
mittee. relating to lighting the city. be adopted,
and that the officers therein named be instructed
TO sign the contract named therein" Three of
Gil voted In favor of the resolution, but the other
three members, although present, declined to
vote, and the Mayor declared that IL was
is about to enter into a contract with the COM
panies named In the report for the purchase of
it, for which the city is to pay the sum of siO I5O.
Acting under the resolution, the Edison Manu-
featuring Company has put up poles, strung
OF electric lights and the city viii buy the plant
and machinery. unless enjoined The city has
contracted with the Buckeye Engine Company
for a steam-engine and appliances to be used in
operating the machinery of the Edison company
plant. at q cost OF 5000. Unless enjoined, the
city will issue bonds to pay for the plant ma
chinery. engine and appliances.
The meeting at which the resolution was adopt
ed was a re gular one, ,attendedb by all the members
OF the Common Council. and all who voted az all
voted In favor of the resolution. The question,
therefore, is: Does the fact that three of the
members present declined TO vote authorize the
conclusion that the resolution was not legally
adoptedf In our Judgment 1T does not
The rule is that IL there is a quorum present and
a majority or the quorum vote in favor OF q
measure it VIII prevail, although an equal num-
ber should refrain from voting. IL Ia not the
ent that is required. All that is requisite is a
majority of the number or members required 10
constitute a quorum. IL there had been four
three had voted for the resolution and one had
voted against il, Or had not voted at all, no one
would hesitate to affirm that the resolution was
duly passed, and il can make no difference
whether four or six members are present, since
il is always the vote of the majority of the
quorum that Is effective. The mere presence OF
inactive members does not impair the right or
the majority of the quorum to proceed with the
business of the body. If members present de-
sire TO defeat a measure they must vote against
il. for inaction will not accomplish their pur-
pose Their silence is acquiescense rather than
opposition. Their refusal 10 vote Is. In effect, a
declaration that they consent that the majority
of the quorum may act for the body of which
they are members.
The rule we have asserted is very old one
The doctrine is thus stated by of the earliest
writers on municipal corporations: "After an
election mas been properly proposed whoever has
{ a majority of those who vote. the assembly being
sufficient. IL elected. although majority of the
entire assembly altogether abstain from voting,
because their presence suffices to constitute the
elective body, and IL they neglect to vote IL Is
their own fault and shall not he deemed to in
validate the act of the others. but be construed
an assent to the determination OF the majority
OF those who do vote." CWillcock Municipal
Corp, sec. 546)
who are present and who help to make up the
quorum are expected to vote on every question.
ana their presence alone is enough to make the
vote decisive and binding. whether they actually
vote or not. The objects or legislation cannot be
defeated by the refusal of any one to vote when
present. If eighteen are present and nine vote,
all in the Affirmative, the measure Is carried. the
refusal OF the other nine to vote being construed
a vote in the affirmative, so far as any con-
struction Is necessary" (Eow & Bemis Munich
pal Police Ordinances, 42l. The principle in
volved IS asserted IN In, many cases. estate VS.;
Green, 81 Ohio Stat, 227; Lountz vs. People, 113
Ill. 13-; County VS.. Johnson, - $50; st. Joseph
TIP. vs.. Rogers. Is Wall, 644; State vs.. Mayor.
81 Mo-, go; Everett vs.. Smith, % MIMI, 50;
Olaknon vs. wainright Burr, 1Ol7: King vs..
Relbringer. Tenn. Rep, $40; Inhabitants VS..
Stearns, 81 Pick, 14S)
the construction which they place upon the
words OF Judge Dillon, found In Section 279 OF
his work on municipal corporations. for. as we
read what the author says. IL is directly against
the appellant. What Is said by Judge Dillon is
this so, IL 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 there
fore omit or decline 10 vote their asseD' ng TO
the measure voted for by the two will n make
IL valid. III three only we're present they would
constitute a quorum, then the votes Of two, be-
Ing majority of the quorum. would be valid;
ceyninly so, where the three are only competent
To ct I'm the first sentence Judge Dillon refers
10 cases where there Is not a quorum present. be-
cause there Is not the requisite number of quail
fied members in attendance. He Ia speak
ing or the effect of the presence of disquali-
fed persons In that sentence, not of the
effect or vote of the majority of a quorum
composed of qualified members of the body In
he last sentence he speaks of n case where there
D qualified quorum present. ana he instances
such a case as We have here, for here four would
be quorum. and according to his rule, three OF
the four could adopt a measure If there were no
opposing votes. The case referred To by the arl-
thor in support OF the proposition embodied in
She first sentence quoted, is that OF Coles vs.
Trustees, 10 Wend., 65S. In that case three Of
five town trustees were disqualified from voting
and there was, of course, no quorum of CONNIE.
tent members, and, consequently, no capacity TO
act. The court said: THE act requires three out
OF five, a majority, to make quorum. IL
there but three present. then the votes OF two
being a majority, would be valid Here were
five trustees. three OF whom were incompetent
10 act. and. being II seems 10 me. far as the
vote was concerned, they were not trustees for
any purpose" IL is obvious, therefore. that no
such ease was before the court "a that now be-
and the MEASURE was adopted by majority vote
or the quorum.
One OF the cases cited In support of the propo-
Eit1Gu contained In fhe second sentence of the