
    State ex rel. Calderwood v. Miller.
    
      Election of City Clerk by Council — Candidate receives plurality of votes — Formal declaration of result by Mayor — Not necessary to fix right lo office.
    1. Where all of the members of a city council, in a city of the second class, vote to elect a city clerk, and one of the candidates voted for receives a plurality .of the votes cast, such candidate is duly elected, and a formal declaration of the result is not necessary to fix his right to the office; and thereafter it is not within the power of any member of the council to change the result by changing his vote.
    2. When a choice has been made on such vote, it is not essential that the mayor as the presiding officer of the council shall declare the result. In such ease the mayor has no duty whatever to perform as to the election. He can take part only in case of a tie vote.
    (Decided April 24, 1900.)
    Eeeoe to tbe Circuit Court of Darke county.
    Tills action was brought by petition in quo warranto, filed, by the relator in the circuit court of Darke county, to oust the defendant from the office of city clerk of Greenville, a city of the fourth grade . of the second class, having a council composed of eight members. The relator alleged that the defendant was not the legally elected clerk of said city, and that he has unlawfully usurped and intruded himself into the said office, to which the relator claims that he was properly elected and was entitled. The most material part of the petition is as follows:
    That on the 17th day of April, A. D., 1899, at the meeting provided by law for the organization of the council, the mayor presiding, the newly elected members of the.council having properly qualified, and all the-members being present, an election was held for the office of clerk of the said city, which resulted in the said ElsAvorth E. Calderwood, relator, receiving four votes; Elliott M. Miller, two votes, and Harry J. Brenneman, two votes. Thereupon, the mayor declared the relator duly elected to the office of city clerk of said city.
    That thereafter, hut without authority, or legal right, as the relator avers, the two members of said council Avho A’oted for said Harry J. Brenneman, changed their votes to Elliott M. Miller, and the mayor then assumed illegally, as the relator claims and avers, to cast the deciding vote in favor of said Elliott M. Miller.
    The defendant’s ansAver contains three defenses. The defendant in his first defense, denies that the relator Avas elected, and denies that the mayor at any time declared the relator elected to the office of city clerk of said city. In the second defense the defendant says that the said city council met at the time stated in the petition, for organization and election of city clerk, all members, namely eight, being present ; and that the mayor of said city presided at said meeting. That thereupon the said city council proceeded to elect a city clerk, and the roll being called four members of said council voted for said relator. ElsAvorth E. CalderAvood, and tAvo members of said council voted for said Harry Brenneman, and two members of said council voted for said Elliott M. Miller, the defendant. That thereupon, and before the said presiding officer, the mayor, had announced or in any way declared any result, the tAvo members of said council who had cast their votes for said Harry Brenneman changed their votes from said Harry Brenneman to said Elliott Miller, and the said two members of said council each cast his vote for said Elliott Miller, the’defendant, making a tie between said relator and defendant Miller, the said relator receiving four votes, and the defendant Miller receiving four votes; that thereupon, the said mayor of said ' city cast his vote in favor of said Elliott Miller and publicly declared said Elliott Miller elected to the office of city clerk of said city of Greenville for the term of two years. That thereupon, the said Elliott Miller gave the bond and took the oath required by law in such cases and entered upon the duties of said office and has been and is now discharging the same.
    The third defense is as follows:
    The said defendant, Elliott Miller, for his third defense says that he claims title to said office of city clerk and the right to hold said office and to discharge the duties and receive the emoluments thereof by virtue of the action of the city council of said city had in the council chamber on April 17, 1899; that the said city council is composed of eight members and that a meeting of said council was held on the 17th day of April, all members being present for organization and election of a city clerk. That the mayor of said city was present at said meeting and presided at the same. That the record and minutes of said meeting of said council, so far as they relate to the election of said city clerk, are as follows, namely :
    “The mayor then called for the'vote on clerk which resulted as follows: For E. E. Oalderwood, Ries, Arens, Harter and Ridenour; for E. M. Miller, Swartz and Reppeto; for H. J. Brenneman, Westfall and Oolvin. Oalderwood, four; Miller, two and Brenneman, two. The mayor then stated if any member desired to change his vote before he would announce his decision they should do so, and if no member desired to change his vote he would have to declare E. E. Oalderwood elected as clerk. Oolvin and Westfall thereupon declared their intention to change their vote and did so by changing their vote from that of Brenneman to that of Miller; the vote then being Miller, four, Calderwood, four. The mayor then stated as the vote was a tie he would cast the deciding vote in favor of E. M. Miller, and declared E. M. Miller as clerk for the term of two years.”
    The said defendant further says that on April 24, 1899, said council met in regular session being next succeeding meeting and all members being present and transacted certain business and that in the record and minutes of said meeting of the 24th of April, among other things, appears and is recorded the following:
    “Minutes of previous meeting read and objected to by Ridenour and Ries. On motion of Ridenour, seconded by Ries, the following amendment to same was adopted, to-wit: The clerk then announced the vote to be Calderwood, four; Miller, two, and Brenneman, two. Whereupon, Ries and Ridenour claimed that E. E. Calderwood had received a plurality of the vote and was the legally elected clerk, and Mayor Chenoweth had declared him so to be, and thereupon, protests being made, Mayor Chenoweth stated that he wanted it to be satisfactory and wanted the council to know what they were doing, and if any member wanted to change his vote he might do so. Thereupon Colvin and Westfall, under the protests of Ries and Ridenour, changed their votes to Miller, and Mayor Chenoweth declared a tie vote, and stated that he would vote in favor of Miller, thereby disregarding his former action, and declared Miller elected clerk. * * * Minutes were then approved as amended.”
    
      Defendant Miller says that on the 18th day of April he took the oath and gave the bond required by law in such cases and entered upon the discharge of the duties of said office and has been hnd is discharging the same.
    The relator demurred to the second and third defenses, and the demurrer was overruled. The relator replied as follows:
    Now comes said relator, E. E. Calderwood, and for his reply to the amended answer of E. M. Miller, says that it is not true, that said two members of said council changed their votes from Harry Brenneman for clerk to said E. M. Miller before the said presidig officer, the mayor, had announced or declared the result of said election for clerk, and contrary the relator says that as stated in his petition the said mayor duly declared the relator elected to said office of city clerk, and thereupon and against the protest of certain members of council, said two members stated in said answer, changed their votes from Brenneman to said E. M. Miller and the said mayor notwithstading his former action, without authority of law, cast his vote for said E. M. Miller, and illegally assumed to declare that the said E. M. Miller was elected clerk.
    Whereof, said relator prays judgment as claimed and asserted in his petition herein.
    Upon the trial of these issues the circuit court found in favor of the defendant and dismissed the petition. A motion for a new trial, by the relator, was overruled. The petition in error assigns, in substance, the following alleged errors: First, that the circuit court erred in overruling the demurrer to the second and third defenses contained in the answer, and second, that the judgment should have been for the relator upon the pleadings and undisputed facts.
    
      
      Allread & Teegarden and D. P. Irwin, for plaintiff in error.
    There are two questions of law:
    1st. Was Calderwood’s election completed upon the announcement of the vote by the clerk as shown in the second and third defenses of the answer.
    2nd. Was there a sufficient declaration of the result by the presiding officer when he declared that “According to the way the vote now stands, Calder-wood will be elected.”
    It is claimed that the members of the council had a right to change their votes so as to create a tie and give the mayor a right by casting his vote to change the effect of the election. It is important in tMs connection to determine when the election is completed under this section, so as to prevent members of the council from changing the result by changing their votes.
    In case of an appointment by a body like the council, it has been held, that where the result is publicly declared, it can not be rescinded or revoked by reconsideration. State v. Barber, 53 Conn., 76; 79 Me., 506; Horr and Bemis on Mun. Ord., sec. 46; Mecham on Public Officers, secs. 113, 114, 119 and 120; 12 C. C., 235; 4 Circ. Dec., 124; 15 C. C., 526;. 8 Circ. Dec., 357.
    Whatever might be the rule as to an appointment, we think the .case is different in the case of an elec- ■ tion.
    In this state it has been held, that the city clerk is elected and not appointed. State v. Squire, 39 Ohio St.. 199; State v. Brady, 42 Ohio St., 504; State ex. rel. v. Anderson, 45 Ohio St., 196;
    It has been repeatedly decided in Ohio, that a plurality under this section elects. State ex rel. v. Green, 37 Ohio St., 227.
    
      The mayor is not a member of tbe council. He is simply ex-officio president at tbe time of sucb organization and in case of a tie vote, he is to give tbe casting vote.
    In this case tbe statute gives him no power, except to preside, and in case of a tie to give tbe casting vote.
    Then tbe only question is, — wbat power was granted to tbe mayor by virtue of bis authority to preside over the meetings of the council?
    If the parlimentary rule governs the decision in case of State ex rel. v. Green could not have been made, for nine members voting where eighteen are present and tbe other nine declined to vote and protest against the election, would not be a parliamentary majority. And in the case of Slate ex rel. v. Anderson, supra, the parliamentary rule would have required a repetition of the vote until either there was a tie, or a majority.
    The statute 1676 as construed by our courts seems to contemplate that the election of a clerk must necessarily take place on the first vote. If one receives a plurality, be is elected; in case of a tie tbe mayor decides by his casting vote. Here was a complete vote and the clerk announced the vote to the council and no one then challenged its correctness, nor does anyone now. Has the mayor anything further to do than simply to confirm this choice by his declaration of the result? He can not change the result by withholding his declaration or allowing the council to re-vote or to change their votes, especially where this is done over objection. 11 Ohio St., 102; 6 C. C., 324; 3 Circ. Dec., 471; Blanchard v. Bissell, 11 Ohio St., 102; State ex rel. v. Railway Co., 6 C. C. 324; 3 Circ. Dec., 471.
    
      
      George W. Mannico, Jr.; 8. V. Hartman and John O. Olarh, for defendant in error.
    The statute makes it the duty of the mayor to preside in suck cases at the organization of the council and the election of city clerk. The statutes prescribes no rules or regulations for such election, and in the absence of any such rules or the adoption of any rules by the council the ordinary parliamentary rules usually followed under such circumstances should govern.
    It is claimed in the brief of the counsel for the plaintiff in error that the call Of the roll and the recording of the vote as cast was of itself sufficient to constitute an election of Mr. Calderwood. We think to hold that it was unnecessary for the mayor to declare the result, and that it was sufficient for the clerk to do so, and that the election was over when the clerk had done so, would be to deprive the presiding officer of all functions and to make useless the provisions of the statute making it his duty to preside.
    The mayor, by the statute, is authorized in case of a tie to cast the deciding vote and declare the result of the election. And when the result has been so declared in the absence of an appeal from his decision and of any error, fraud or illegality, the council has exhausted its power in respect to such election and it cannot thereafter reconsider its action or change the result.
    Robert, in his Rules of Order (110-111), states “When a vote is taken the chairman should always announce the result.” “He will count * * * * announce the number and declare the result.” If tellers are appointed they must make the count and report to the chairman.
    
      “A member has a right to change his vote (when not made by ballot) before the decision of the question has been finally and conclusively pronounced by the chair, but not afterwards.”
    We refer the court to secs. 1675, 1676 and 1685 of the Revised Statutes and to the following cases bearing upon the case before the court: State ex rel. v. Green, 37 Ohio St., 227; State v. Squire, 39 Ohio St., 197; State v. Brady, 42 Ohio St., 504; State, ex rel. v. Anderson, 45 Ohio St., 196; Marbury v. Madison, 1 Cranch., 137; State v. Phillips, 79 Me., 506; State v. Foster, 2 Halst., 101; Whitney v. Van Buskirk, 40 N. J. L., 463; Baker v. Cushman, 127 Mass., 105; Putman v. Langley, 133 Mass., 204; State ex rel. Coogan v. Barbour, 53 Conn., 76; State ex rel. Southey v. Lashar, 71 Conn., 540; 44 L. R. A., 197.
   Davis, J.

The relator’s chief contention is that upon the undisputed facts the judgment of the court below should have been in his favor. The undisputed facts, or at least such of them as are necessary for our present purpose, are, that the council numbered eight members; that all of the members Avere present at the meeting on the 17th day of April, 1899; that the may- or presided at that meeting;that an election was then held for the office of city clerk; that four votes were cast for the relator, two votes for the defendant, and two votes for a third person, and that the clerk announced the result of the vote. Thereupon, after some parley, the two members who had voted for the third candidate changed their votes to the defendant causing a tie, and the mayor then cast his vote for the defendant and declared him to be elected. Whether the mayor did, or did not declare the relator elected, before the change of votes, is a disputed question and not very material. The statute (Revised Statutes, sec. 1676) declares that the members of the city council shall elect the clerk and other officers. It is provided that in cities of the second class the mayor, by virtue of his office, shall preside at the organization of the council; but he is not a member of the city council, and it is not provided that he shall participate in the election, except in case of a tie vote. That contingency did not arise in this case, unless the two members who changed their votes to the defendant, might lawfully do so after a vote had been taken and the result ascertained.

But the vote having been cast, and the result having been announced to the council by the clerk, by which it was apparent that the relator had received a plurality of the votes cast, the function of the council was discharged. State ex rel. Attorney General v. Anderson, 45 Ohio St., 196. The election was complete. The formality of a declaration by thé presiding officer of the council could neither add to, nor detract from, the thing which had already been done. The right of the relator to qualify and to be inducted into the office was fixed eo instante.

The council was engaged in the duty of electing officers, a duty imposed on the members thereof, not on the body as a council. They were not engaged in the deliberative business which is the ordinary work of the council; but in the election of a city officer. They were not acting under parliamentary law; but were casting their votes and making their choice as required by a specific statute. They could make this choice but once. Having done so they could not reconsider it. Much less, could some of them against the protest of á plurality, under the suggestions or invitations of the presiding officer or sua sponte, change their votes. This would give to the minority the power of defeating the choice of a plurality which had already been, legally made and ascertained. See Reg. v. Donoghue, 15 U. C. Q. B., 454; and Hopkins v. Swift, 87 S. W. Rep., 155.

The relator was duly elected city clerk and must he inducted into the office.

Judgment reversed and judgment of ouster against defendant.  