Gemeny v. Prince George's County

McWilliams, J., delivered the opinion of the Court. For the first time we are required to consider a difference of opinion in respect of the charter adopted by the voters of Prince George’s County on 3 November 1970, and, to be sure, one need not be a prophet to predict that it will not be the last time. We shall relate what happened before saying why we shall affirm the order of the chancellor, Loveless, J. Section 504' of the charter provides: “The County Executive shall appoint the members of all boards and commissions, subject to confirmation by the Council as required by Section 322 of this Charter * * The pertinent language of Section 322 is: “The Council shall hold public hearings on all such appointments not less than ten days and not ⁸⁷ more than twenty days after their submission to the Council by the County Executive. If the Council fails to act to confirm or reject such appointments within thirty days of their submission to the Council by the County Executive, the appointment shall stand approved. * * * In the case of appointments by the County Executive to membership on a board or commission, a vote of a majority of the full Council shall be required to reject such appointment.” On 29 June 1971 the County Executive gave notice to the 11 member County Council that he had nominated the appellant (Gemeny), Joan Beck and Johanna Norris to fill vacancies on the Washington Suburban Sanitary Commission.

The time established by the Council for the public hearing was 26 July at 10 a.m. Due notice thereof appeared in three local newspapers. The chairman of the County Council called the hearing to order at 10:10 a.m. on the appointed day. Four members were present.

The fifth arrived at 10:20 a.m.; the sixth at 10:35 a.m. The chairman announced, before the hearing began and after the arrival of the sixth member, that no action would be taken on the nominees until the meeting of the Council scheduled for 4 August. After the nominees had presented their respective statements about 36 persons spoke in behalf of one or the other of the nominees. Eleven of those who spoke favored Gemeny.

None of the speakers was sworn. Around mid-morning Councilman Reeder (one of the six present) left the room to go to the toilet or, as put, with obsequious delicacy, by counsel for Gemeny, “to answer nature’s call.” He was gone for about five minutes. At 11:55 a.m. he left once more. This time he was absent for about 45 minutes.

During each of his absences the other five members remained in the hearing room. None of them, it seems, had occasion to leave the hearing room. While it was alleged that the chairman also left the hearing room for “a brief period,” it was not ⁸⁸ shown that he and Reeder were absent at the same time. At any rate only Reeder’s absences are in issue here.

At the conclusion of the hearing the chairman announced “that the appointments [would] be taken under advisement.” Reeder, who had returned to the hearing room in time to hear the remarks of the last two citizens to speak, subsequently listened to a recording of what had been said during his absences. Some of it, he said, was inaudible. At the meeting on 4 August, all members being present, Johanna Norris was confirmed; Gemeny and Joan Beck were rejected. Reeder voted for the motion to confirm Gemeny and against the motion to reject him.

The motion to confirm failed by a vote of 5 to 6. The motion to reject was carried by a vote of 7 to 4. Ten days later Gemeny filed his bill of complaint for “injunctive and other relief.” Two weeks thereafter he filed an amended bill seeking a declaration that, because of the lack of a quorum during Reeder’s two absences at the hearing on 27 July, his rejection on 4 August was null and void. The case came on for a hearing before Judge Loveless on 2 September.

On 14 September he declared the action of the Council in rejecting the appointment of Gemeny to be “legal, valid and final.” Gemeny’s appeal was filed on 5 October. The case was argued in this Court on 11 November. It seems to be settled at common law that a majority of the elected members of a municipal body constitutes a quorum, and unless otherwise expressly provided in a charter or statute, the common law rule prevails. Zeiler v. Central Railway Co., 84 Md. 304 (1896) ; Heiskell v. Mayor and City Council of Baltimore, 65 Md. 125 (1886) ; Clark v. City Council of Waltham, 328 Mass. 40 , 101 N.E.2d 369 (1951) ; 4 McQuillen, Municipal Corporations § 13.27 (1968 rev. ed.).

It is settled also at common law and under most statutes that a quorum of the body is required for “the transaction of business,” and the passage of any motion, ordinance, by-law, or any other per ⁸⁹ mitted act in the absence of a quorum is void. City of Harve de Grace v. Bauer, 152 Md. 521 (1927) ; Murdoch v. Strange, 99 Md. 89 (1904) ; 4 McQuillen, Municipal Corporations § 13.27 (1968 rev. vol.) ; 56 Am. Jur. 2d Municipal Corporations § 163 (1971) ; 62 C.J.S. Municipal Corporations § 399 (1949). Section 316 of the charter provides, among other things, that “[a] majority of the members of the full Council shall constitute a quorum for the transaction of business * * (Emphasis added.) It provides also that “[n]o business shall be transacted, or any appointments made, or nominations confirmed, except in public session.” Since Section 301 of the charter directs that “[t]he Council shall be composed of eleven members” it is obvious that a quorum would require the presence of six members.

Gemeny’s contention hinges mainly on the apposite connotation of the expression “transaction of business.” If holding a public hearing can be said to be the “transaction of business” then his contention would have some merit. We see it differently, however. We think a public hearing held pursuant to Section 322 of the charter is not the transaction of business within the meaning of Section 316. Indeed, the penultimate sentence 1 of Section 316 seems to make a clear distinction between the transaction of business and “appointments made or nominations confirmed.” There are cases holding that the acceptance of resignations, Dombal v. City of Garfield, 129 N.J.L. 555 , 30 A. 2d 579 (1943), and the filling of vacancies in a council, Burns v. Stenholm, 310 Mich. 639 , 17 N.W.2d 781 (1945), Commonwealth ex rel.

Park v. Kaiserman, 330 Pa. 196 , 199 A. 143 (1938), constitute the transaction of business. See also Muenninghoff v. Marret, 269 Ky. 826 , 108 S.W.2d 878 (1937) ; Doughty v. Scull, 96 A. 564 (N. J. 1915). There are also cases which take a contrary view. An example is Prezlak v. ⁹⁰ Padrone, 67 N. J. Super. 95, 169 A. 2d 852, 856 (1961), where a city charter provided that no “corporate action” could be taken except by affirmative vote of a majority of the whole city council.

Nonetheless it was held that a majority of the quorum could fill a vacancy in the ranks of the council. We shall forego further discussion of these cases not alone because their impact upon our decision would be minimal but principally because the charter and the resolutions of the Council in themselves furnish adequate decisional material. On 2 April 1971 the Council adopted “Rules of Procedure * * * £to] be in effect at all meetings of the Council.” The pertinent provisions of those rules follow: “1. GENERAL POLICY PROVISIONS “101 TYPES OF MEETINGS Pursuant to Section 817 of the Charter, the Council shall publicly meet in both legislative sessions and business meetings, as well as special public hearings to be held upon pending legislation and budget matters.

Pursuant to Article 25, Section 5 of the