Attorney-General v. Shepard ( 1882 )

The amendment of the city charter was a local legislative question that could be submitted by the senate and house, either to the people of Concord, or to the city council elected by the people as their representatives for the general purpose of exercising such powers of local legislation and administration as may be delegated to municipalities. State v. Hayes, 61 N.H. 264, 319; C. B. Co. v. Lowell, 15 Gray 106, 116; Stone v. Charlestown, 114 Mass. 214, 222; B. P. Church v. New York, 5 Cow. 538, 540, 541; Perry v. Keene, 58 N.H. 40; Kelley v. Kennard, 60 N.H. 1, 3, 6. And the rejection of the amendment by the council would not render its subsequent adoption by the people unconstitutional.

There were seven aldermen. Four were a quorum. Six were present. Three voted for the adoption of the amendment, and the refusal of the other three to vote was inoperative. In the absence of express regulation, a proposition is carried in a town-meeting, or other legislative assembly, by a majority of the votes cast. St. Joseph Township v. Rogers, 16 Wall. 644, 664; Dill. Mun. Cor., s. 44, p. 63, n. 2; Richardson v. Society,58 N.H. 187, 188. The exercise of law-making power is not stopped by the mere silence and inaction of some of the law-makers who are present. An arbitrary, technical, and exclusive method of ascertaining whether a quorum is present, operating to prevent the performance of official duty and obstruct the business of government, is no part of our common law. The statute requiring the presence of four aldermen does not mean that in the presence of four a majority of the votes cast may not be enough. The journal properly shows how many members were there when the vote was taken by yeas and nays; there was no difficulty in ascertaining and recording the fact; and the requirement of a quorum at that time was not intended to furnish a means of suspending the legislative power and duty of a quorum.

No illegality appears in the adoption of the amendment.

Judgment for the defendants.

All concurred.