
    The State, ex rel. Reed, Appellee, v. DeMaioribus, Appellant, et al.
    
      (No. 25894
    Decided May 27, 1936.)
    
      
      Mr. Sylvester V. McMahon, Mr. F. W. Zimmerman and Mr. Robert F. Mooney, for appellee and cross-appellant Wm. C. Reed.
    
      Mr. Alfred Glum, director of law, Mr. Henry S. Brainard and Mr. James E. Mathews, for appellant Alexander L. DeMaioribus.
    
      Mr. Saul Da/naceau, Messrs. Harrison S Marshman and Mr. Louis A. Weinberg, for cross-petitioner and appellee Joseph A. Artl.
   Williams, J.

Who was elected president of the council of the city of Cleveland?

There are three distinct claims. Artl contends that he was elected by a plurality vote on the first ballot; DeMaioribus that he was chosen by a majority vote on the fifteenth ballot; and Reed that by change of vote after the fifteenth ballot and before the announcement of the result by the chair he was elected by a majority vote.

The contention of Artl is founded on the first paragraph of the syllabus in State, ex rel. Calderwood, v. Miller, 62 Ohio St., 436, 57 N. E., 227, 78 Am. St. Rep., 732, which reads:

‘•'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.”

We are confronted with an interpretation of this syllabus. Primarily syllabi are of two classes. In the one class, generally speaking, the declaration of legal principles is in the abstract; in the other class, there is a concrete statement of the facts involved accompanied by an assertion of the holding of the court. The syllabus quoted is of the former class and presents an abstract statement of the law.

In evaluating a syllabus to determine its legal significance a true sense of proportion requires that the declaration of principle be considered as pertinent to the particular ease in which it is made. A legal abstraction may be sound as applied to one state of facts and wholly inapplicable with the factual status otherwise. It is a cardinal principle of legal interpretation that an abstract syllabus must be read in the light of the essential facts.

The syllabus quoted has been the law in Ohio for more than thirty-six years and this court accepts it as fundamentally sound in conception. The facts in the instant case, however, are different, and that case may therefore be distinguished. Nevertheless the legal principles pronounced have some bearing on the case at bar. In brief, the syllabus, being interpreted, contains three propositions of law: First, a plurality vote is sufficient to elect; second, when the choice is once legally made, a formal declaration of the result is not necessary to fix the right to the office; and third, the right to change one’s vote does not exist. In that case by common consent of council a plurality was deemed sufficient and there was no request for nor attempt to take a further ballot; and, again, no rule nor consent for the change of vote appears to have been existent. In fact two councilmen protested the change of votes. A like analysis may be made of State, ex rel. Kohler, Atty. Genl., v. Anderson, 45 Ohio St., 196, 12 N. E., 656. In State, ex rel. Shinnich, v. Green, 37 Ohio St., 227, the president of council was elected by a majority of the votes actually cast, nine of the eighteen members voting for him and nine refusing to vote. That case therefore stands on a different footing.

In the instant case by an announcement from the chair before the balloting began and before each successive ballot and by common consent the election was to be determined by a majority vote, as had been done on several former elections of a president of council. Just before the fifteenth ballot, by a vote of thirty-two to one, council adopted a motion to adjourn after two more ballots were taken, thus confirming its action in not accepting a plurality as decisive. Since the acquiescence continued until one of the candidates received a majority, it was then too late to claim that one of the candidates had been elected by a plurality on an earlier ballot. If election by a majority thus effected could be upset through court action, many suits might be brought by candidates for councilmanic positions who received a plurality on an earlier ballot by the council, and those apparently elected by a majority vote be unseated. No doubt such a situation exists in many cities of the state. Moreover, if a majority vote is accepted as necessary to elect, the members may vote differently than if a plurality only is required. For instance complimentary votes may he cast in the early stage of the balloting. It would be unfair to allow a minority to prevail contrary to a common understanding that the balloting was to continue until a candidate received a majority.

The council is a deliberative body with prerogatives limited only by positive law. As such it had full power to make reasonable rules governing the election. In advance of a ballot, it could determine whether the election should he by plurality or by majority. It could adopt a rule permitting change of votes after a ballot hut before announcement of the result by the chair. Neither custom nor practice of previous councils is of determinative value. By common consent and approval it was understood and agreed that the election should he by a majority vote and therefore a majority determined the choice.

On the other hand no rule had been adopted permitting a change of votes before announcement of the result. The council is empowered to vary legislation by amendment or repeal as frequently as it may desire; but the position of president of the council is a public office and when the appellant received a majority of the votes he was elected and, as the result was not contingent upon the right of a member to change his vote under a rule previously adopted, he was entitled to the office and could not be deprived of his right thereto except by unanimity of action on the part of the members, among whom he was numbered. The change of votes could not lawfully be made, as unanimous consent thereto was lacking. To permit the change under the circumstances would he like altering the rules of a game so as to affect the result of. a play after its completion. When the chair announced the result there was no appeal from the decision. However, whether there was an attempt to take such an appeal is a disputed fact. Had such an appeal been taken it would have been of no avail since it was not even essential that the chair declare the result under the circumstances. To take a vote on such an appeal would be equivalent to taking an additional ballot. A candidate once legally elected could not be deprived of his office in that way.

The contention of Artl seems to be that he was elected on the first ballot by a plurality and that, as he did not know that under the law he was elected, he could not by subsequent conduct waive his rights. This court has already disposed of this contention by making it plain that under the existing circumstances there could be no election by a mere plurality. As this court holds that Artl had no subsisting right to the office at any time, the question of waiver is inconsequential.

The suggestion has been made that the whole election is invalid because the clerk was not vested with power to act as presiding officer and the proceedings were fatally contaminated with indecorum in conducting the alleged election. The council had power to determine who should preside over its deliberations and whether the clerk held the chair de jure or de facto could not alter the result. If disorderly proceedings should be held to invalidate an election otherwise legal, some legislative bodies could never organize; and what is more a minority by rowdyism could forestall action by a worthy majority. The contention that the election was invalid on these grounds is not well founded.

DeMaioribus received the required majority and un- ' der the principles pronounced the change of votes was not warranted by law. He was therefore duly elected.

Judgment reversed and final judgment for appellant.

Stephenson, Jones, Matthias and Day, JJ., concur.

Weygandt, C. J., and Zimmerman, J., dissent.

Weygandt, C. J.,

dissents for two reasons, either of which precludes disturbance of the judgment of the Court of Appeals.

In the first place there is no properly authenticated bill of exceptions upon which to predicate a review of the judgment below. The bill was not approved by the trial court. It shows merely the approval of counsel of record. The claim is made that this course was followed by reason of the amendment to Section 11571, General Code, which purports to sanction this procedure. This court has held repeatedly that any sort of record of the facts in a case must be approved by the trial court in the form of either a journal entry or a bill of exceptions; and this is the rule even when an agreed statement of facts is involved. Now the amendment to this statute seeks to abrogate the settled rule and thereby make it possible to obtain a review upon a record that never has been seen by the judge who presided at the trial and is therefore in possession of the most accurate knowledge as to the things that actually transpired. It is indeed a strange and alarming process that attempts to clothe a reviewing court with power to review, affirm, modify or reverse the judgment of a lower court about something that may never in fact have occurred. It is inevitable that this amendment will cause unnecessary trouble and miscarriages of justice, and therefore it should be invalidated at once by the stamp of judicial disapproval.

The second reason why the judgment of the Court of Appeals should not be disturbed is that there was no rule requiring more than a plurality for the election of a council president. Of course under the city charter the council was empowered to adopt such a rule, but it never did so unless it can be said that this was accomplished by the clerk’s mere unauthorized and gratuitous announcement of a majority rule, together with the apparent acquiescence therein by the members of the council, all of whom were concededly ignorant of the fact that the settled law of Ohio permits election by a plurality. State, ex rel. Attorney-General, v. Anderson, 45 Ohio St., 196, 12 N. E., 656; State, ex rel. Calderwood, v. Miller, 62 Ohio St., 436, 57 N. E., 227. To attach to such confused inaction a degree of importance - and dignity tantamount to the adoption of a rule seems plainly to do nothing less than violence to the very words themselves.

If anything intelligible or coherent can be said to have emerged from the welter of disorder and confusion of this meeting it was the election of Mr. Artl as president when the fifteen votes he received on the first ballot gave him the necessary minimum of a plurality.

Zimmerman, J.,

dissenting. In 43 Corpus Juris, 492, under the title “Municipal Corporations,” Section 745, this statement appears: “The organization of the common council or governing body must be effected in conformity to the provisions of the charter or of the general law.” To the same effect is State, ex rel. Southey, v. Lashar, 71 Conn., 540, 42 A., 636, 44 L. R. A., 197.

Section 30 of the Charter of the city of Cleveland provides:

“At the first meeting in January following a regular municipal election, the Council shall elect one of its members President # * *. In the absence of the President the Council shall elect a President pro tempore.” (Italics mine.)

As I interpret this section participation in the election of a president is confined to the coumcil, as represented by its elected members, and there is no authority, express or implied, for one who was clerk of the council during the preceding year, not a member of that body, to act as presiding officer over any of its deliberations. .

Unlike a state legislature for instance, a municipal council is a continuous body. 19 Ruling Case Law, 893; 43 Corpus Juris, 491.

The uneontradicted assertion was made upon the oral argument of this case that the member of the council who served as its elected president during the year 1935 was still a member of that group on January 6, 1936, and present at the meeting on such date. Nothing to the contrary appearing in the charter he continued in the position of president until the election of his successor. Section 8, General Code. He was the only person authorized and qualified to preside over the meeting of January 6, 1936, when his successor was to be chosen.

In my opinion the attempted election of_ji council president on January 6, 1936, was conducted in such an irregular, confused, indecisive and unsatisfactory manner as to have resulted in no election at all. Another election should be held by the council properly organized, under rules agreed upon and clearly understood in advance of the balloting.

Hence, a judgment of ouster should issue against the cross-petitioner Artl, and the petition of Reed and answer of DeMaioribus should be dismissed.  