
    George W. Smith et al., App’lts, v. Wilbur H. Proctor et al., Trustees, Resp’ts.
    
      (Court of Appeals, Second Division,
    
    
      Filed December 15, 1891.)
    
    Schools—Bonds, how authorized — What tote required by the STATUTE.
    In order to adopt a resolution to bond a district for school purposes, such as erecting a new school house, the statute requires simply a majority of the qualified voters in attendance pursuant to legal notice who actually vote upon the question submitted by answering “Aye” or “No” as the names of all present are called. Those who do not respond as their names are called should not be counted at all.
    (Parker, J., dissents.)
    Appeal from a judgment of the general term of the supreme-court in the second judicial department, affirming a judgment entered upon the decision of the court at special term, dismissing-the complaint, with costs.
    This action was brought by certain taxpayers of school district number 2, of the town of Newtown, Queens county, against, the defendants, as the trustees and the collector of said district, to restrain said trustees from issuing bonds for the erection of a new school house and to restrain said collector from collecting a tax already levied for the purpose of paying one year’s interest, on such bonds.
    The facts appear in the opinion.
    
      J. E. Parsons, for app’lts ; Marquis D. Gould, for resp’ts.
   Vann, J.

The only question brought before us by this appeal is, whether the resolution to bond the district was adopted, by a majority of the qualified voters, within the meaning of the-statute governing the subject.

The trial court found that there were 300 residents of the district entitled to vote at school meetings at the time the resolution was adopted and that all of them had been duly notified of the meeting and its purposes, which included, by specific mention, the voting of “a tax to be raised by instalments * * * to-be expended in the erection of ” a new school house. At a meeting held only a few days before it had been determined, by a vote of sixty-nine to forty-seven, that it “ was advisable to erect a new school building,” and a committee was thereupon appointed to procure information respecting the site, cost, etc., with instructions to report at a future meeting. An adjournment was then taken and on the adjourned day 115 voting inhabitants were-present, when the resolution in question was adopted by a vote of.' thirty-four for to thirty-three against the same, only sixty-seven, having voted upon the question.

The statute regulating the course to be pursued in order to-issue valid bonds is as follows:

“Whenever a majority of all the inhabitants of any school district entitled to vote, to be ascertained by taking and recording the ayes and noes of such inhabitants attending at any annual,, special or adjourned school district meeting, legally called or held, shall determine that the sum proposed and provided for in the next preceding section shall be raised by instalments, it shall be the duty of the trustees of such district, and they are hereby authorized to cause the same to be raised, levied and collected in equal annual instalments in the same manner and with the like authority that other school taxes are raised, levied and collected, and * * * whenever a tax shall have been voted to be collected in instalments for the purpose of building a new school house, to borrow so much of the sum voted as may be necessary at a rate of interest not exceeding six per cent, and to issue bonds or other evidences of indebtedness therefor, which shall be a charge upon the district and be paid at maturity, and which shall not be sold below par.” Laws 1864, chap. 555, p. 1245, § 19; Laws 1875, chap. 567, p. 642, § 18; Laws 1881, chap. 528, p. 706, § 2.

As the thirty-four electors who voted in favor of the proposition were less than a majority of the 115 qualified voters who attended the meeting, it is contended in behalf of the plaintiffs that the resolution did not receive the majority required by statute, and hence that the trustees were without lawful authority to issue the bonds. The argument is conclusive, unless the legislature‘has provided some means of ascertaining a majority of the legal voters other than a simple enumeration of all the qualified voters of the district, or even of all who attended the meeting.

An analysis of the statute suggests the inquiry whether it requires a majority of all entitled to vote, or a majority of all present and entitled to vote, or a majority of all present and entitled to vote and actually voting ? The answer to this question is to be found in the words “to be ascertained,” as used in the statute. What is to be ascertained ? Obviously, the majority required to make the determination. How is it to be ascertained ? The statute answers: “By taking and recording the ayes and noes of such inhabitants attending,” that is, as attend the meeting. How is a vote by ayes and noes taken and recorded? By calling the names •of those present and recording such as vote “ aye as in favor of, and such as vote “ no ” as opposed to the pending resolution. As those who do not vote cannot be recorded as voting, the majority must be determined by comparing the number of those who vote “ aye ” with the number of those who vote “no.” Those who did not vote at all can not be recorded as voting “no,” because they did not vote “ no,” and to so record them would falsify the record. When a vote is taken under a statute which provides that a majority is to be ascertained by taking and recording the ayes and noes of those present at the meeting, we think that those who do not respond as their names are called should not be counted at all, and that certainly they should not be counted as if they had voted “ no.” The rule of the common law pertaining to the subject, as declared by Lord Mansfield, is that “ whenever electors are present and do not vote at all, they virtually acquiesce in the election made by those who do.” Oldknow v. Wainwright, 2 Burr., 1017, 1021. And by Lord Den-man, that a vote by a majority of a meeting means “ a majority of those who choose to take a part in the proceedings of the assembly.” Gosling v. Veley, 7 A. & E., N. R, 406, 456.

The language of the supreme court of the United States in a recent case has a bearing upon the subject. Speaking through its chief justice, that learned court said, that “all qualified voters who absent themselves from an election duly called, are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares.” County of Cass v. Johnston, 95 U. S., 360, 369. For many years it has been the established policy of the state to cherish common schools,, and for this purpose it annually expends large sums of money. The statute, of which the section under consideration forms a part,, is an elaborate and comprehensive act, designed to furnish instruction free of expense to all the children in the state. Great care is-taken to provide for the erection of suitable buildings for school purposes, and if a district needs a new school bouse and will not voluntarily build one, agencies are provided by which it may be compelled to build one, even against the wishes of a majority of the taxpayers. Raws 1887, chap. 592, p. 805, § 1. The statute' should receive a reasonable construction, keeping in view its general purpose to promote the efficiency of the common schools. It would not he reasonable to hold that the majority required is an absolute majority of all the qualified voters of the district-, because the statute does not so command, and, on that basis, it would be difficult if not impossible to tell whether a resolution had been carried or not. No enumeration or registration of voters is provided for, and the qualifications of persons entitled to vote at school meetings differ materially from those of electors at general elections. Hence a dangerous question of fact would always be-open and the value of the bonds would be seriously affected thereby. Prudent men would hesitate before investing in securities resting on such a precarious foundation.

So, as we think, it would be unreasonable to hold, in the absence of an express provision to that effect, that a majority is required of all who were present at the meeting, whether they voted or not, as this also might leave the result uncertain and invite controversy. By following the plain language of the statute and ascertaining a majority by comparing the affirmative and negative votes as actually given and recorded, these difficulties are avoided and the beneficent aim of the legislature is accomplished. This-is the construction which has been uniformly given to the section under review by the department of public instruction, and is in accordance with the general usage that has followed its rulings. Code of Public Instruction, 263. It does not permit the absent or indifferent to neutralize the efforts of the public spirited and enterprising, but compels everyone who would make his influence effective to attend the meeting and vote in the manner provided by law.

In order to adopt a resolution such as that under consideration, the statute as we interpret it requires simply a majority of the qualified voters in attendance pursuant to legal notice, who actually vote upon the question submitted by answering “ aye ” or ■“no,” as the names of all present are called.

We think that the complaint was properly dismissed and that the judgment appealed from should be affirmed, with costs.

All concur, except Parker, J., dissenting. 
      
       Affirming 24 St. Rep., 706.
     