Summary
In Endeavor-Oxford, the Wisconsin court held that a municipal council did not possess an "implied power" to alter the general common-law definition of a quorum.
Summary of this case from State ex Rel. Stephan v. Bd. of Sedgwick County Comm'rsOpinion
September 13, 1955 —
October 11, 1955.
APPEAL from an order of the circuit court for Marquette county: RUSSELL E. HANSON, Circuit Judge. Modified and, as modified, affirmed.
For the appellant there was a brief by Nikolay, Jensen Nikolay of Abbotsford, and oral argument by Frank L. Nikolay.
For the respondent there was a brief by John A. Conant of Westfield, attorney, and Rogers Owens of Portage of counsel, and oral argument by Mr. Conant.
On June 21, 1954, at a properly noticed and ordered public hearing held in the town of Packwaukee, Marquette county, a joint committee, organized pursuant to provision of sec. 40.02(5), Stats., and consisting of the county school committees of Marquette, Adams, and Waushara counties, heard a petition (pursuant to provisions of sec. 40.03(1)) which was signed by various electors of Endeavor-Oxford Union Free High School District and which had been filed on May 4, 1954, with the secretary of the county school committee of Marquette county. The petition requested a detachment of sections 19, 20, 30, and 31 of the township of Packwaukee from the Endeavor-Oxford Union Free High School District and the attachment of said territory to the Westfield Union Free High School District for high-school purposes only. Fifteen of the 18 members of the joint committee attended the hearing. Immediately following the hearing the joint committee held a conference on the proposed plan of reorganization with the school boards of the districts involved. Thereafter the joint committee voted upon the petition. Nine votes were cast in favor and six votes against the granting of the petition. An assistant state superintendent of schools who was present at the meeting advised the committee that a minimum of 10 votes — a majority of the entire membership of 18 and not a majority of the 15 members present and voting — was required to effectuate a granting of the petition. Acting upon such opinion the committee determined that the motion was lost. A formal order signed by 14 members of the committee denying the petition was thereupon entered. On June 24, 1954, the joint committee's clerk sent by mail to the clerks of the municipalities affected a certified copy of the order of the committee.
On July 23, 1954, two of the signers of the petition, acting for themselves and other electors of the district, appealed from the order of the joint committee to the circuit court for Marquette county pursuant to authority of sec. 40.03(5), Stats. In the notice of appeal directed to the joint school committee and its secretary, the petitioners, after alleging their residence and the fact that their children were in attendance in the Endeavor-Oxford Union Free High School District, and after setting forth certain particulars of their petition and of the call of the meeting of the joint school committee on June 21, 1954, stated in part that:
"That there attended at said hearing, 15 of the 18 county school committeemen of said joint county school committee;
"That said 15 members constituted a quorum of said joint committee;
"That upon a vote being taken for the relief asked in said petition, nine of the committee members present voted in the affirmative and six of the committee members present voted in the negative;
"That a majority of the committee members present voted to grant the relief requested in said petition;
"That through misunderstanding, inadvertence, or mistake, an order was signed by 14 of said committee members denying the request of said petition, and denying the detachment and attachment of said area;
"That said order so signed did not properly set forth the action taken by said committee;
"That the undersigned petitioners reside within the area requesting to be detached from said district and attached to the Westfield Union Free High School District;
"That they are aggrieved by the order because the same prevents their children from attending the Westfield Union Free High School District and because the same subjects them as taxpayers to additional taxes and because the said order does not reflect or express correctly the action taken at said meeting;
"That a demand has been made upon said committee to reconvene and correct said error and no action has been taken thereon; . . .
"Wherefore, the undersigned do request the circuit court for Marquette county, Wisconsin, that an order be issued correcting the mistake or error that was incorporated in the order signed, and that the court order and direct said committee to correct said order to conform to the majority vote of said committee;"
After the notice of appeal had been on file with the clerk of the circuit court for Marquette county for more than twenty days, the court on August 21, 1954, gave notice by telephone to the district attorneys of Marquette, Adams, and Waushara counties who represented the county school committees of those respective counties, and also to Attorney John A. Conant, who represented the petitioners, of a hearing in the matter which was to be held at a later hour of that day. All appeared at the appointed time except the district attorney of Waushara county. The court inquired of counsel as to whether they desired to proceed upon the basis of the statement in the notice of appeal or whether they preferred that the court direct the petitioners to serve upon opposing parties a complaint to which demurrer or answer could be interposed. It appears that there was no objection to proceeding upon the basis of the statement in the notice of appeal. There was no objection to an immediate hearing. The court indicated that the sole issue to be considered was whether the votes taken at the meeting of the joint committee on June 21, 1954, entitled a granting of the motion or a denying of it.
Examined particularly with reference to events at the joint-committee hearing were Clarence Bartz, county superintendent of schools of Marquette county who was a member and secretary of the county school committee of Marquette county, and also Bernard Mitchell, a member of the county school committee of Marquette county, who had acted as chairman of the joint committee at the meeting in question. All of the counsel were afforded opportunity to participate in the examination of witnesses. Upon the record the court determined that the joint committee innocently and without any intention to do wrong had entered an erroneous order. The court determined that it had the power to correct the mistake. On August 27, 1954, by formal order the court determined that the joint committee had cast a vote of nine to six in favor of the granting of the petition, and that through mistake, error, and inadvertence the committee had denied the petition which should have been granted, and ordered that the order of the joint committee be amended so as to provide that the petition be granted. The court also directed that its order be effective as of July 1, 1954. It is from this order that Endeavor-Oxford Union Free High School District has appealed.
Appellant maintains that the trial court failed to observe proper procedure in the appeal from the order of the joint committee, and that as a consequence, substantial rights of the appellant were prejudiced. It contends that under valid procedure, the petitioners, after filing the notice of appeal, were obliged to file a complaint alleging particulars upon which the appeal was based and to which response courts, have been interposed by the joint committee, the appellants, or others interested. It urges that procedure identical with that employed in School Dist. v. Callahan (1941), 237 Wis. 560, 297 N.W. 407, where a complaint was filed and opportunity to demur or answer was afforded, ought to have been required in the instant case.
Sec. 40.03(5), Stats., provides in part:
"Any person aggrieved by an order may appeal therefrom to the circuit court of any county in which territory the proposed district lies, by serving written notice of such appeal upon the secretary of the committee or committees and filing such notice with the clerk of the court both within thirty days after the recording of the order. The order shall be stayed pending determination of the appeal. . . . The court shall not remand the proceeding, but shall issue its own order. . . ."
The statute contains no directions as to procedure in such appeals. In the present situation a precise detailed statement of the error charged in the joint committee's action and order was contained in the notice of appeal. Any writing labeled a complaint could not have described with greater accuracy the petitioners' claim upon the appeal. Objection by way of law or fact could readily have been interposed. Previous to the reception of evidence, the court announced (for the benefit of the participating parties) the issue that it considered itself called upon to determine. No objection was made to the issue as framed by the court. From the record it is apparent that the participating parties understood the issue and were willing and prepared to have the court determine it at the time. They were afforded full opportunity to present evidence and examine witnesses concerning it. The notice of appeal and the accompanying statement had been served upon the joint committee more than twenty days before the court (called the matter for hearing. The joint committee has not objected to the court's order and has not appealed from it. The various county school committees which constituted the joint committee were given opportunity to be represented by the district attorneys of their own counties who, under provision of sec. 59.47, Stats., represent them. While the procedure which was employed and approved in School Dist. v. Callahan, supra, is adequate in protecting the rights of interested persons in appeals to the court from county school committee orders, nevertheless it is not to be treated as an exclusive method for proceeding in such appeals. Since the joint committee had been served with notice of the appeals as required by statute and had without objection participated in the proceedings before the court, and had acquiesced with respect to the issue as it was framed and considered it was not entitled to notice other than that which was given with respect to the claim of the petitioners and in regard to the call of the case for hearing in court.
The appellant school district contends that had the court required the filing of a complaint, appellant then would have been apprised of the petitioners' position and could have participated in the court hearing, and could have advanced its own position with reference to the issue raised. Appellant complains that it has been denied due process of law. The statute, however, does not provide that affected school districts be served — with notices of appeal to courts from orders of county school committees. Had there been prepared and filed a pleading denominated a complaint, the petitioners would have been under no obligation to serve the school district the same. It is impossible to perceive how appellant may have had greater notice of petitioners' position had a complaint been filed than under these circumstances where a statement of particulars was included in the notice of appeal. We find no merit to appellant's objection in this regard.
Appellant points out that the appeal permitted in sec. 40.03(5), Stats., does not imply a trial de novo, and that the court was limited to a consideration of whether the joint committee had acted in excess of its power or in the unlawful abuse of its power. It contends that the record indicates that the joint committee was not wanting in jurisdiction and that it did not abuse its discretion.
The court determined that the joint committee through error or mistake had rendered an improper order. Abuse of discretion on the part of the joint committee is implied in the court's order. A ruling made upon grounds and reasons clearly untenable constitutes abuse of discretion. See Weinberg v. Weinberg (1946), 208 S.C. 157, 162, 37 S.E.2d 507. Abuse of discretion does not necessarily mean ulterior motive, arbitrary conduct, or wilful disregard of the rights of a litigant, but it may mean a failure to apply principles of law applicable to a situation if prejudice results. State v. Shafer (1942), 71 Ohio App. 1, 47 N.E.2d 669. It was within the jurisdiction of the court to inquire as to whether the ruling of the joint committee was erroneous and therefore an abuse of discretion, and to make determination of the matter. There was no improper interference by the court with the joint committee's determination.
Appellant strenuously contends that since the joint committee determined by its own rule, based upon the advice of the assistant superintendent of schools, that the vote of a majority of the 18 members of the committee was essential to carry a motion, the trial court erred in its determination that the 15 members present at the meeting constituted a quorum, and that the vote of the majority of the quorum was controlling.
At common law a majority of the membership of a board or a committee constitutes a quorum for the transaction of business, and a majority vote of the quorum is decisive.
Where the legislature confers powers upon a board to be exercised by it without providing as to the number of members necessary to act in concert to exercise the power or powers conferred on the board by the statute, then the common-law rule prevails that a majority of the board constituting a quorum may lawfully act. Oakland v. Board of Conservation and Development (1923), 98 N.J.L. 806, 816, 122 A. 311.
In Seiler v. O'Maley (1921), 190 Ky. 190, 192, 227 S.W. 141, it was held that under the common-law rule, a majority of the authorized membership of a representative body consisting of a definite number of members constitutes a quorum for the purpose of transacting business, but it is competent for the statutes or the constitution creating the body to prescribe the number of members necessary to constitute a quorum or to delegate to the creative body the authority to so prescribe.
In Ex parte Willcocks (N. Y. 1827), 7 Cow. 402, 409, 17 Am. Dec. 525, the court said that the general rule is that to make a quorum of a select and definite body of men possessing the power to elect, a majority, at least, must be present, and then a majority of the quorum may decide.
In the absence of other controlling provision, the common-law rule that a majority of a whole body is necessary to constitute a quorum, applies. Gaskin v. Jones (1941), 198 S.C. 508, 18 S.E.2d 454.
In 37 Am. Jur., Municipal Corporations, p. 671, sec. 57, it is said:
"It is well settled that at common law a majority of the duly elected members of a municipal council constitute a quorum, in the absence of special statutory or constitutional provision to the contrary, and a council has no implied power to adopt a rule that a greater or less number shall constitute a quorum."
In State ex rel. Burdick v. Tyrrell (1914), 158 Wis. 425, 434, 149 N.W. 280, this court said:
"There is no provision in the written law requiring a majority of the council to elect, hence the common-law rule applies. Under the charter two thirds of the aldermen, being four, constitutes a quorum for the transaction of business. The election or appointment of a city attorney was `transaction of business,' and a majority of a quorum, in the absence of any statute to the contrary, was sufficient to elect."
Under these common-law principles, it is plain that since the legislature did not prescribe the number of votes required for the passage of a matter before a county school committee or joint committee, a majority of the committee constitutes a quorum, and a majority of the quorum may decide the matter. The committee has no implied power to adopt a rule that a greater or lesser number shall constitute a quorum. In the instant situation the joint committee by its action required a greater vote for approval of the petition than is provided by common law. Such requirement was erroneous. It was within the jurisdiction of the court to issue an order correcting the committee's error on the basis that such error constituted an abuse of discretion.
Lastly, appellant maintains that the court erred in issuing a retroactive order with respect to the effective date of the reorganization of the school districts. We concur in that view.
Sec. 40.03(1), Stats., provides in part that "orders of the committee providing for the reorganization of school districts shall not take effect until July 1 following the recording of the order." In sec. 40.03(5) there is provision that "the court shall not remand the proceeding, but shall issue its own order." The joint committee's order did not provide for the reorganization of the school districts and ordinarily that order would have become effective when properly filed pursuant to sec. 40.03(3). The order was stayed pending the determination of the appeal as provided in sec. 40.03(5). The order of the court affirmed the vote of the joint committee but changed the committee's conclusion with respect to the effect of that vote. Until the court's order was issued, the corrected conclusion had no force. The court's order nullified the effect of the committee's order which had been recorded. The committee's voting action and the proper conclusion thereon as determined by the court had no force until the order of the court was issued and recorded. Hence, the order could not have become effective earlier than July 1, 1955. The court's direction that July 1, 1954, be the effective date of the reorganization of the school districts, was error. The order of the court shall be modified so as to provide that the detachment of the territory in question from the one school district and its attachment to the other shall be effective as of July 1, 1955.
By the Court. — The order appealed from is modified so as to provide that the effective date for the detachment of sections 19, 20, 30, and 31 of the township of Packwaukee, Marquette county, from Endeavor-Oxford Union Free High School District and the attachment of said territory to Westfield Union Free High School District for high-school purposes only, be July 1, 1955. In all other respects the order appealed from is affirmed. Cause remanded with directions to modify the order in accordance with this opinion.
CURRIE, J., took no part.