Somers v. City of Bridgeport

This is an equitable action to restrain the defendant from paying salaries to certain policemen. There are two grounds on which it is claimed an injunction should issue: first, that the policemen were not legally appointed; and second, that the steps taken for their payment did not conform to the requirements of the city ordinances.

Their appointment devolved upon a non-partisan board of police commissioners, consisting of the mayor and two members from each of the two great political parties. The mayor presided, and could vote only when there was a tie. Any act of the board required the concurrence of three members.

In consequence of including West Stratford in the city limits, the common council, on March 19th, 1890, directed the board of police commissioners to appoint four additional patrolmen on the police force. On the 1st of July, 1890, a patrolman died, so that there were five to be appointed. On the 19th of July, the board being in session, a member introduced a resolution appointing the men in question. Thereupon two members announced that they would not vote upon it or have anything to do with it. The mayor put the question on the passage of the resolution; two members voted for it, two refrained from voting either way, and the mayor declared the resolution passed. The non-voting members protested, but the proceeding was recorded as declared. The men thus appointed entered upon the duties assigned them, and performed the services for which they now claim payment.

A city ordinance provides that a schedule of the salaries or pay of the officers and members of the police force, signed and approved by the police commissioners, shall be handed to and examined by the auditor before being presented to the common council. The pay-roll of the police force, containing thereon the names of the five men in question, was presented to the council of the city for payment, and approved by the mayor and two of the commissioners. It had not been otherwise approved by the board, as on two occasions meetings of the board had been called for the purpose of approving it, but on each occasion only two members with the mayor were present. The common council directed payment. Soon after this the present suit was brought and a temporary injunction served. Upon these facts the Superior Court dissolved the injunction and dismissed the complaint. The plaintiff appealed.

1. Were the patrolmen legally appointed? Action was taken at a regular meeting of the board at which all the members were present. The board had been directed four months before to appoint four additional patrolmen to supply a want caused by the annexation of West Stratford to the city. A short time before one had died, so that, in the judgment of the common council, five more policemen were needed. An attempt to supply this need was met by two of the commissioners, not by any objection to the time or manner of making the appointment, nor by any objection to the character or competency of the men, but simply by a refusal to take any action in the matter. We are not told what their motive was; nor are we at liberty to indulge in conjecture. On the face of the record they appear as obstructionists, and as such we must treat them. As it was the duty of the board to appoint, it was their duty to act. By their refusal to vote they neglected their duty. The needs of the city demanded action. Sound policy requires that public interests should not suffer by their inaction. Had they voted against the resolution there would have been a tie, and the mayor would have given a casting vote. Had he voted in the affirmative the legality of the appointment could not have been questioned. But they did not vote although present. Their presence made a quorum A quorum was present, and all who voted, voted in the affirmative. Why was not the mayor justified in declaring the resolution passed? The silence of the non-voting members was acquiescence, and acquiescence was concurrence. Their previous declaration and their subsequent protest avail nothing. The test is, not what was said before or after, but what was done at the time of voting.

Counsel for the plaintiff contend that the legislature contemplated — indeed intended, that either party might at any time, if they suspected that the other intended a partisan advantage, take the course pursued in this case, and thus produce a dead-lock. We do not so read the charter. If that had been the intention it would have been more effectually accomplished by denying to the mayor the power to give a casting vote. The object of that provision was to prevent a dead-lock, and we see no evidence of an intention to vest in two members the power to cause one. It was doubtless supposed that all the commissioners would be fair-minded men, and that they would strive to agree upon a police force composed of the best men selected from both parties. If all the members really desired to accomplish that result, and acted like reasonable men, they could hardly fail. Unfortunately human nature is such that there was a possibility, even a probability, that occasionally the commissioners might not agree. The legislature, recognizing such an emergency, wisely provided that the mayor might untie the vote, deeming it far better for the community that there should be a partisan police rather than no police at all.

Upon principle two members could not, by inaction, prevent action by the board. Being present, it was their duty to vote. Had they done so, a result would have been certain. The most that they could have done would have been to make a tie; and then the mayor, by his vote, could have passed or rejected the resolution. Their presence made a quorum and made it possible for the board to act. It would be strange if by their mere neglect of duty they could accomplish more than they could by direct action. The legal effect of their silence was an affirmative vote. And so are the authorities.

The 127th section of Angell Ames on Corporations, 10th edition, reads as follows: — "After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although the majority of the entire assembly altogether abstain from voting; because their presence suffices to constitute the elective body, and if they neglect to vote it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote And such an election is valid, though the majority of those whose presence is necessary to the assembly, protest against any election at that time, or even the election of the individual who has a majority of the votes; the only manner in which they can effectually prevent his election, is by voting for some other qualified person:" citing Oldknow v. Wainwright, 2 Burr., 1017;Rex v. Foxcroft, id., 1020;Crawford v. Powell, id., 1016;Oldknow v. Wainwright, 1 W. Bla., 229.

The principle thus enunciated has been sanctioned and applied by some excellent authorities in this country.Inhabitants of First Parish inSudbury v. Stearns, 21 Pick., 148;Attorney Gen. v. Shepard et al., 62 N. Hamp., 383;Walker v. Oswald, 68 Md., 146;St. Joseph Township v. Rogers, 16 Wall., 644;County of Cass v. Johnston, 95 U. S. R., 360;State ex rel. Shinnick v. Green,37 Ohio St., 227; Rushville Gas Co. v. City ofRushville, 121 Ind., 206.

There are cases which seem to regard those present and not voting as voting with the minority.Commonwealth v. Wickersham, 66 Penn. St., 136; Launtz v. The People, 113 Ill., 137.

Proceeding upon that theory we should come to the same result — a tie, untied by the casting vote of the mayor. He was not required to give a formal vote; the declaration of the result was sufficient.Small v. Orne, 79 Maine, 81; RushvilleGas Co. v. City of Rushville, 121 Ind., 212. But the weight of authority regards the non-voting members as assenting to the action of the majority, whether in the affirmative or negative. In some instances a statute requires a majority of the whole number; or, as in the Pennsylvania case, (Commonwealth v. Wickersham, supra), a majority of those present. In such cases those not voting are necessarily counted with the minority. But in the absence of some special provision of that nature, so counting them might result in absurd consequences or serious inconvenience. In many instances the silent vote added to the minority would change the result; and in all cases it would be necessary to ascertain the number present and not voting, which would be attended with much inconvenience. But a presumed acquiescence in the result is attended with no such consequences. Hence we think that is the better view.

It is suggested that the "concurrence of three," necessary for the transaction of business, means an active concurrence and not a passive one. We do not think so. A passive concurrence may be, and often is, just as effectual as an active one. Silence is oftentimes as significant as speech, and conduct frequently contradicts words. Here then we had the "active concurrence," by their vote, of two members; a "passive concurrence," by their silence, of the other two; which, in legal effect, was an agreement by all that the resolutions should pass.

2. Is the failure to comply with the city ordinance, under the circumstances, a sufficient reason for continuing the injunction?

That ordinance was not intended to put it in the power of any one or more of the city officials unjustly to deprive the members of the police of their regular pay. An attempt to use it for that purpose is an abuse rather than a legitimate use. The ordinance was designed for the protection of the city by providing an orderly and systematic method of paying its bills. It was competent for the council to waive its provisions, if, in its judgment, justice required it. The direction to pay was a waiver. It is no part of the duty of a court of equity to enforce by injunction an ordinance enacted for the benefit of the city, when the city has waived it, unless it clearly appears that tax-payers are likely to suffer unjustly. It does not so appear in this case.

There is no error in the judgment.

In this opinion LOOMIS, SEYMOUR and TORRANCE, Js., concurred. ANDREWS, C. J., dissented.