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of the whole number legally authorized to act is binding. This necessary number is called a quorum." It varies with the different municipal charters or different state laws and before such a body can take legal action, it is necessary that a quorum be present. A number less than a quorum can, however, legally adjourn from time to time.65 The question of whether the assent

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& H. Mill Co., 156 Mo. 620; State v. Yates, 19 Mont. 239, 37 L. R. A. 205; Hutchinson v. Borough of Belmar, 61 N. J. Law, 443, 39 Atl. 643; Cadmus v. Farr, 47 N. J. Law, 208; Barnert v. City of Paterson, 48 N. J. Law, 395; Young v. Crane, 67 N. J. Law, 453, 51 Atl. 482; Weinckie v. New York Cent. & H. R. R. Co., 61 Hun, 619, 15 N. Y. Supp. 689; Mills v. Gleason, 11 Wis. 470.

62 City of San Francisco v. Hazen, 5 Cal. 169; McCracken v. City of San Francisco, 16 Cal. 591; In re Executive Communication, 12 Fla. 653; Swift v. People, 162 III. 534, 44 N. E. 528, 33 L. R. A. 470; City of Evanston v. O'Leary, 70 Ill. App. 124; State v. Porter, 113 Ind. 79, 14 N. E. 883; Strohm v. Iowa City, 47 Iowa, 42; Cascaden v. City of Waterloo, 106 Iowa, 673, 77 N. W. 333; State v. Alexander, 107 Iowa, 177, 77 N. W. 841; Leavenworth, N. & S. R. Co. v. Meyer, 58 Kan. 305, 49 Pac. 89; McLaughlin v. Wheeler, 18 Ky. L. R. 860, 38 S. W. 493; Lyon v. Mason & Foard Co., 19 Ky. L. R. 1642, 44 S. W. 135; Lewis v. Town of Brandenburg, 20 Ky. L. R. 1011, 47 S. W. 862, 48 S. W. 978; Pence v. City of Frankfort, 101 Ky. 534; Zeiler v. Central R. Co., 84 Md. 304, 34 L. R. A. 469; Whitney v. Village of Hudson, 69 Mich. 189, 37 N. W. 184; Attorney General v. Trombly, 89 Mich. 50; Fournier v. West Bay City, 94 Mich. 463; Inavale Tp. v. Bailey, 35 Neb. 453. Two-thirds of the whole number elected necessary.

City of North Platte v. North Platte Waterwords Co., 56 Neb. 403; Stanton v. City of Hoboken, 52 N. J. Law, 88, 18 Atl. 685; Schermerhorn v. Jersey City, 53 N. J. Law, 112, 20 Atl. 829; Mueller v. Egg Harbor City, 55 N. J. Law, 245, 26 Atl. 89; Van Zandt v. City of New York, 21 N. Y. Super. Ct. (8 Bosw.) 375; People v. Nichols, 52 N. Y. 478.

State v. Orr, 61 Ohio St. 384. The necessary majority is a majority of the whole number legally elected and capable of performing the duties of the office; not a majority of the full membership. Brooks v. Claiborne County, 67 Tenn. (8 Baxt.) 43; Lawrence v. Ingersoll, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308; State v. Mott, 111 Wis. 19, 86 N. W. 569.

63 Heiskell v. City of Baltimore, 65 Md. 125; Tappan v. Long Branch Police, Sanitary & Imp. Commission, 59 N. J. Law, 371. Rules of subordinate commissions in respect to the number constituting a quorum must be consistent with the general statutes which control. See, also, as holding the same, People v. Brinkerhoff, 68 N. Y. 259.

64 Curtis v. Gowan, 34 Ill. App. 516. Action taken by less than a legal quorum may, however, be subsequently ratified at a full meeting. Cadmus v. Farr, 47 N. J. Law, 208; Barnert v. City of Paterson, 48 N. J. Law, 395.

65 Hentzler v. Bradbury, 5 Kan. App. 1; Leavenworth, N. & S. R. Co.

and action of a member of a deliberative body is necessary to constitute his presence at a meeting of the body of which he is a member or whether his physical presence only is necessary in order that he be included within the number present and acting is an interesting one and it has been generally held that the physical presence only is necessary; that if a member is within the place of meeting or its adjoining lobbies, he can be counted as present and included within the number necessary to constitute a quorum."

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Veto. Where the power to veto an ordinance or legislative act is given a designated official, the law may require a particular number as a quorum or as necessary to adopt or pass such measures over the veto. This number is usually a larger proportion of the whole number of the legislative body than that required for the transaction of regular business.68

v. Meyer, 58 Kan. 305; In re State Treasurer's Settlement, 51 Neb. 116, 36 L. R. A. 746; In re Light, 21 Misc. 737, 49 N. Y. Supp. 345.

66 State v. Vanosdal, 131 Ind. 388, 31 N. E. 79, 15 L. R. A. 832; Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 6 L. R. A. 315; Cotton v. Davies, 1 Strange, 53; Com. v. Schubmehl, 3 Lack. Leg. N. (Pa.) 186; Schmulbach v. Speidel, 50 W. Va. 553, 40 S. E. 424, 55 L. R. A. 922. The principle stated in the text applies where the presence of members of a legislative body is secured by compulsory process. See, also, as holding the same, State v. Pinkerman, 63 Conn. 176, 22 L. R. A. 653; Town of Davis v. Davis, 40 W. Va. 464.

67 Achley's Case, 4 Abb. Pr. (N. Y.) 35; North v. Cary, 4 T. & C. (N. Y.) 357; People v. Schroeder, 12 Hun, 413, affirmed in 76 N. Y. 160; People v. Fitchie, 76 Hun, 80, 28 N. Y. Supp. 600.

68 City of San Francisco v. Hazen, 5 Cal. 170; McCracken v. City of San Francisco, 16 Cal. 591; Pollasky v.

Schmid, 128 Mich. 699, 87 N. W. 1030, 55 L. R. A. 614. "This is an application for a writ of certiorari to review the action of the circuit judge of Wayne county, who denied an application for mandamus to compel the respondent to publish a certain ordinance which petitioner claims was regularly adopted. The ordinance referred to was vetoed by the mayor. The charter divides the city of Detroit into seventeen wards and provides for the election of two aldermen from each ward. The legislative power of the city is vested in a common council, to be composed of aldermen elected from each ward. One of the aldermen died and one resigned. After the ordinance was vetoed, a motion to pass it over the veto of the mayor received twenty-two votes while seven votes were in the negative. Section 103 of the charter provides that after the veto of any ordinance, resolution or proceeding the common council shall proceed to reconsider the vote by which the same was passed, and after such re

§ 508. Legislative proceedings; their character; review of motive.

To the members of deliberative or legislative assemblies is entrusted the sole power of making laws." They are limited in the exercise of this power by the constitution, by their own rules of conduct and their official oath. The motives which induce the individual members of such bodies in the passage of particular statutes cannot, as a rule, be inquired into in proceedings testing the legality of such legislation. Its validity will depend upon

consideration two-thirds of all the members elected of the common council shall be necessary to pass or adopt the same. The sole question is as to the construction of this provision of the charter.

It is admitted that if two of the thirty-four aldermen had been temporarily absent, the ordinance would not have been passed. We cannot see how the fact that two of the thirty-four aldermen elected were permanently absent, instead of being temporarily so, would change the terms of the charter. The language is not ambiguous. The purpose doubtless was that, when legislation was proposed the wisdom of which was in so much doubt as to meet with the veto of the mayor, before it could become a law, it should receive the vote of two-thirds of all the aldermen, when all the wards of the city were fully represented in the council." Beck v. Berrien County Sup'rs, 102 Mich. 346; Lawrence v. Ingersoll, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308. See, also, § 511 and cases cited. But see State v. Orr, 61 Ohio St. 384, 56 N. E. 14.

69 City of Napa v. Easterby, 76 Cal. 222; Western & A. R. Co. v. Young, 83 Ga. 512, 10 S. E. 197; Nevin v. Roach, 86 Ky. 492; MacKenzie v. Wooley, 39 La. Ann. 944; Moser v. White, 29 Mich. 59.

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70 Cooley, Const. Lim. 186, and cases cited; Kerfoot v. City of Chicago, 195 Ill. 229; Wright v. Defrees, 8 Ind. 298; McCulloch v. State, 11 Ind. 424; Miners' Bank v. United States, 1 G. Greene (Iowa) 553; Buell v. Ball, 20 Iowa, 282; Villavaso v. Barthet, 39 La. Ann. 247; Paine v. City of Boston, 124 Mass. 486.

Borough of Freeport v. Marks, 59 Pa. 253, where it is said that: "The motives of members of a council or the influence under which they acted cannot be brought to nullify an ordinance within their corporate powers duly passed in legal form at a meeting regularly convened. The legality of the acts of legislative or corporate bodies cannot be tested by the motives of individual members or the adventitious circumstances they may lay hold of to carry their measures."

Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135, 52 L. R. A. 369. But see Champlin v. City of New York, 3 Paige (N. Y.) 573. The court here holds that to warrant the issuing of a parliamentary injunction to restrain the official action of a common council, there must be shown prima facie evidence of corruption or some particular act of fraud on the part of the members of the council who voted for

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other conditions, circumstances and questions. The regularity of the proceedings," the power of the body to pass the particular legislation as determined by constitutional or statutory restric tions, the question of a quorum,73 and many others pertaining to the details of the passage of legislation, can each and all be inquired into by the courts judicially, but the motive of the individual member is above inquiry.75

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(a) Proceedings. A deliberative body must act in the passage of legislation as such. This is a rule which applies also to the deliberative actions of all official bodies.

the particular ordinance; this would indicate that the motives of the members of a municipal council may be inquired into.

State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262, which holds that under a colorable exercise of a granted power, the good faith of members of a city council in acting on an ordinance regulating the price of gas can be inquired into by the courts.

71 City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246; Schanck v. City of New York, 10 Hun, 124, affirmed 69 N. Y. 444.

72 State v. Shea, 106 Iowa, 735, 72 N. W. 300; Wrought Iron Bridge Co. v. Arkansas City, 59 Kan. 259, 52 Pac. 869; People v. City of Rome, 136 N. Y. 489, reversing 65 Hun, 622, 20 N. Y. Supp. 223.

73 Masters v. McHolland, 12 Kan. 23; Higgins v. Curtis, 39 Kan. 283; State v. Guiney, 26 Minn. 313; Morris v. Merrell, 44 Neb. 423; Magneau v. City of Fremont, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 786; Cleveland County Com'rs v. Seawell, 3 Okl. 281.

74 Swann v. Town of Cumberland, 8 Gill (Md.) 150.

75 Soon Hing v. Crowley, 113 U. S. 703. In the opinion of Mr. Justice Field the court held that "The rule is general with reference to

That their action be con

the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as they may be discussed on the face of the acts, or inferable from their operation considered with reference to the condition of the country and existing legislation. The motives of the legislators considered as the purposes they had in view will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives considered as the moral inducements of their votes will vary with the different members of the legislative body. The diverse character of such motives and the impossibility of penetrating into the hearts of men and ascertaining the truth precludes all such inquiries as impracticable and futile." Kassell v. City of Savannah, 109 Ga. 491; City of Topeka v. Raynor, 8 Kan. App. 279; Tomlin v. City of Cape May, 63 N. J. Law, 429; Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135, 52 L. R. A. 369. The courts in the absence of a showing of fraud will not inquire into the motives of individual members of a legislative body in passing laws or of the beneficiary of that legislation.

sidered legal, they must have met as such body and transacted business in the capacity given them by law.76

(b) Presumption of law in favor of validity. The presumption of law exists in favor of the validity of the proceedings of legislative bodies. This principle will apply to the manner in which the meeting may be called, the time and place of meeting, the character of the business transacted and the particular manner in which the business may have been transacted as affected by the existence of rules of order, provisions for a quorum and the like."

76 City of Lowell v. Simpson, 92 Mass. (10 Allen) 88. The power conferred upon the mayor and aldermen of a city cannot be exercised by the mayor alone. The court say: "The ordinances of the city of Lowell in force at the time of the making of the agreement declared on, prohibited the obstruction of any street for the purpose of building, 'without first obtaining a written license from the mayor and aldermen, or some person authorized by them,' and faithfully complying with such reasonable conditions as 'said board may impose.' This ordinance was clearly reasonable and proper and within the power conferred on the city council by the city charter, to make 'salutary and needful by-laws.' The only consideration for the defendant's agreement to indemnify the city against damages caused by his occupation of Bridge street was a license signed by the mayor alone, containing nothing to show that he was authorized by the mayor and aldermen to give it. There is no allegation either in the declaration already filed or in the amended count which the plaintiffs have moved for leave to add, that he was so authorized. Such an authority cannot be implied from the fact of his being mayor. In the absence of such authority the license was

void. This ordinance of the city could not be annulled or dispensed with by the individual act of the mayor as one of the surveyors of highways, elected under the act amending the city charter. There being no consideration for the defendant's agreement he is not liable to this action."

77 Woodruff v. Stewart, 63 Ala. 206. The court here say that the mayor and councilmen or other officers of a municipal corporation are not usually secured because of their learning in the law, their observance of its terms or their instruction in fine distinctions. their action it to be subjected to a rigid criticism, much of it done in good faith and in the spirit of their definite authority would be avoided.

If

Red v. City Council of Augusta, 25 Ga. 386. Reconsideration of a vote. City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246; State V. Smith, 22 Minn. 218; Chosen Freeholders of Hudson County v. New Jersey R. & T. Co., 24 N. J. Law, (4 Zab.) 718; Schanck v. City of New York, 10 Hun, 124, affirmed 69 N. Y. 444; City of Lead v. Klatt, 13 S. D. 140; Hark v. Gladwell, 49 Wis. 172. "It will not do to apply to the orders and resolutions of such bodies, nice verbal criticism and strict parliamentary distinctions because the business is

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