Opinion
No. 33649.
April 10, 1939.
COUNTIES.
Where, at meeting of county board of supervisors with four members present, two members voted affirmatively for employment of driver of county truck, and other two members did not vote, order employing truck driver became effective and entry of negative vote on minutes after adoption of order by the two members who had not voted was insufficient to set aside the order of employment.
APPEAL from the circuit court of Tishomingo county; HON. CLAUDE F. CLAYTON, Judge.
W.C. Sweat, of Corinth, for appellant.
The only way the Board of Supervisors can act, as has been held by this court many times, is by order entered on its minutes, and the board must act as a board. In order for the board to be able to act there must be a quorum present, that is to say, at least three members. Section 205 of the Code of 1930. When a quorum is present, to pass any order a majority of that quorum must vote for the order, otherwise the order could not be passed, and even conceding that two members voted for Hunt and that the other two members did not vote at all, Hunt was not elected because he did not get a majority of the votes; it takes three to have a majority of four, and he only got two; if there had only been three members present and he had gotten two votes and the other did not vote he would have been elected, but inasmuch as there were four members present and he only got two he was not elected.
15 C.J. 462, sec. 113; 14 Am. Jur. 204, sec. 32.
I find no case directly in point in this state, however this court has passed upon the right of less than a majority of the trustees to act. In the case of State v. Alexander, 130 So. 754, referring to the right of trustees to elect a teacher the court said: "Two of the trustees, acting independently, without a formal meeting of the board of trustees, had no authority either to elect teachers or reassign such teachers after they had been duly elected. Where several persons are authorized to perform a public service, or to do an act of a public nature as an organized body, which requires deliberation, they must be convened in a body, in order that they may have counsel and the advice of every member. Any action otherwise taken, although with the consent of the body, is illegal. This principle is elementary and applies, of course, to school trustees."
Prater v. Abernathy, 160 Miss. 451, 134 So. 168; Ball v. Jones, 137 Miss. 500, 102 So. 563.
It may be argued that since two of the members of the board voted for Hunt and the other two members present did not vote that they tacitly consented to the election of Hunt and that his election is therefore legal, but we contend that where the record affirmatively shows, as it does in this case, that the majority of those present did not vote for Hunt that he could not be declared elected and that the formal declaration in the minutes that he was elected is void.
To permit less than a majority of those present to act would be against public policy and is certainly against the spirit of our institutions.
The minutes of the board show that the votes of the other two men were actually recorded against Hunt. In other words, the minutes show that Hunt received two votes and that two votes were cast against him and that he was declared elected. Certainly if the minutes show that two men voted for him and two against him he was not elected; however, the minutes on the fifth day show that only two actually voted for him at the time and the other two did not vote, and on the fifth day and while the board was still in session, these two that did not actually vote had their names recorded as voting against Hunt.
Jesse D. Finch, of Iuka, and Thos. H. Johnston, of Corinth, for appellee.
Neither M.F. Marlar nor B.D. Waddle voted at all in the matter of the election of a truck driver when, on the second day of the meeting, the matter was regularly before the board for consideration, they had a right on any subsequent day of the term while the board was still in session, to instruct the clerk to have the minutes of that day's meeting show that they each voted "Nay." Not having voted at all, they instructed the clerk to enter on the minutes something that did not transpire. The clerk was without authority to put anything in the minutes that did not happen.
Sec. 211, Code of 1930.
To permit any member of the board to change his vote on a subsequent day, or to vote where he had not voted on some matter theretofore before the board on a previous day and to have the minutes changed from day to day would be so extremely confusing that the board would never know how it stood on any proposition. The only way that this could be done is by an order of the board. The contracts made by the board cannot be varied, orders amended, and minutes changed without a subsequent order of the board, and not by any members of the board acting independently.
Lamar v. Tally, 116 Miss. 588, 70 So. 299; Campbell v. Humphrey Co., 133 Miss. 410, 97 So. 722; Smith v. Tallahatchie Co., 124 Miss. 36, 86 So. 707.
We agree with appellant when he says in his brief, "The only way a Board of Supervisors can act, as has been held many times by this court, is by order entered on its minutes, and the board must act as a board. In order to do this there must be a quorum present." But we do not agree with him that no order can be passed by the board without a majority vote of those present at the meeting, where some of the members do not see fit to vote either one way or the other, for we have been able to find nothing in the statutes or the authorities in this state that so hold.
In this state the Legislature has left no doubt as to what constitutes a quorum of the Board of Supervisors, for section 205 of the Code of 1930 provides that three members of the Board of Supervisors shall constitute a quorum. These three members of the board, meeting as a body, can do or perform any act, and make any contract, or pass any order that the full board in regular session could do or make or pass.
If three members are present, two of them can bind the board and the county, regardless of whether the other member votes against, or does not vote, in this we are all agreed; then if two can bind the county when only three are present, and one does not vote, why may we ask, if four members of the board are present, or say if the full board were present, and two of the members vote to pass an order regularly before the board, and either two or three members, as the case may be, either through indifference, or as appellant hints in his brief, or want of moral courage, do not see fit to vote either one way or the other, would not the order be valid, would not the order be valid and binding? We contend such to be the case. The other standing by without objection will be held to have acquiesed in what was done; they should not be permitted to shirk their responsibility and thus hamper the orderly administration of the affairs of the county.
On the second day of January, 1939, the Board of Supervisors of Tishomingo county met with four members present, one of whom was M.F. Marlar; the president was absent on account of illness. On Tuesday morning, January 3rd, an order was entered, employing W.C. Hunt as driver of the county truck for the fiscal year 1938-9; when the motion was put as to the election or appointment of Hunt for the position, two members of the Board voted affirmatively, and the other two did not vote at all, and the order was entered on the minutes. On a later day of the term Marlar and Waddle had the Clerk of the Board to enter on the minutes that they voted "nay" in the matter of Hunt's appointment, and that the president, A.B. Long, was absent, and not voting.
Thereupon, after discussion of the matter before the Board, it was decided to have someone take an appeal to the Circuit Court for the purpose of testing the validity of Hunt's appointment. The bill of exceptions, signed by the president pro tem, recites the following: "Whereas, on the 2nd day of January, 1939, among other things coming before the Board for consideration was the election of a county truck driver for said county, whereupon D.T. Moss, member of the Board for the first district made a motion to elect W.C. Hunt as the truck driver and the same being seconded by H.G. Finch, member of the Board from the fourth district the question was put before the Board, and those voting for the election of W.C. Hunt, as truck driver, were H.G. Finch member of the Board from the 4th district and D.T. Moss, M.F. Marlar, of the second district, not voting at that time, and B.D. Waddle, of the 5th district, acting as president pro tem of the Board, not voting. And whereas on Thursday the 5th day of January, 1939, while the Board was still in session M.F. Marlar and B.D. Waddle requested the Clerk of said Board to record their names on the minutes as having voted against the said W.C. Hunt, which was accordingly done by the Clerk, and the names of D.T. Moss and H.G. Finch as having voted for W.C. Hunt. There being some question as to the legality of these proceedings, which will be embodied in a special bill of exceptions, for the court to determine the legality of the action of the Board; It is ordered by the Board that some aggrieved party shall make up and file a bill of exceptions setting forth the facts as stated above, for the courts to determine the legality of the proceedings in such case. It is further ordered by the Board that this be recorded on the minutes of the Board of Supervisors. Done in regular session this the 5th day of January, 1939. B.D. Waddle, President Pro Tem."
Then appears in the record the following: "To the Honorable Board of Supervisors of Said County: The undersigned, C.E. Marlar, a resident citizen and tax payer of Tishomingo county, Mississippi, feeling aggrieved by a certain action of the Board of Supervisiors of said county on the 2nd day of January, 1939, being the first day of the regular January, 1939, session of said Board in the election of W.C. Hunt as truck driver of the county truck for said county and files this his bill of exceptions to the action of said Board as follows; First, that a majority of the Board did not vote for the election of W.C. Hunt. Second, B.D. Waddle, President pro tem. of the Board, had a right to vote. Third, that B.D. Waddle and M.F. Marlar, members of the Board, had a right to have their votes recorded on the minutes of the Board on the 5th day of January, 1939, while the Board was in session. Fourth, that M.F. Marlar and B.D. Waddle, members of the Board, did not vote on the 2nd day of January, 1939. Wherefore petitioner filed this his bill of exceptions to the action of the Board in declaring W.C. Hunt elected, and asks that a transcript of the record be made up and sent to the Circuit Court to be reviewed by said Court, tendering herewith the bond in the sum of $100.00, conditioned according to law. Respectfully submitted, C.E. Marlar."
Bond was given by C.E. Marlar, signed by Kim Marlar and Jasper Julen. On the appeal to the Circuit Court the judgment of the Board of Supervisors was affirmed; from which this appeal is prosecuted.
While somewhat novel as applied to a Board of Supervisors, it is common parliamentary practice in many bodies to put a motion, and where only a few vote for it, and none against it, to consider the motion carried or adopted, although the parties voting therefor constitute a minority of the membership of the body. It is not unusual in the legislature, and in other bodies, for measures to be carried by a very small vote, with none voting against them. There is an old maxim applicable in such case, that "silence gives consent;" and when a question is put and voted for affirmatively by those entitled to vote, with no negative votes, or with fewer than the affirmative votes, the matter is considered carried or adopted. The appointment of Hunt having been made in this manner on the second day of the term, and entered on the minutes as a contract, it was valid until set aside by a majority vote. We think, therefore, that the order of the Board, employing Hunt, was effective on the second day of the term, the third and fourth days of January; and the entry of the negative votes on the minutes, after this adoption, by two members out of four was insufficient to set aside the former order, making the appointment.
The judgment of the court below accordingly will be affirmed.
Affirmed.