an important public purpose, and therefore consider the provision as mandatory, and its observance essential to valid corporate action.1 The proper remedy for the council is to cause a nunc pro tunc entry to be made. This it has power to do. Statutory provision requiring for the passage of municipal ordinances of a general nature that they be read on three different days, unless three-fourths of all the members elected shall dispense with the rule, is mandatory. Thus where two ordinances were reported for passage, and the requisite number voted in favor of suspending the rule for reading on different days, and the ordinances were respectively passed, it was held that the vote suspending the rules applied only to the first ordinance, and that the second was not legally adopted. § 292 (230). Acts by less than Quorum void. Acts done when less than a legal quorum is present, or which were not concurred in by the requisite number, are void.5 This is a fundamental rule in 1 Steckert v. East Saginaw, 22 Mich. 104 (1870), where the purpose of the requirement is well expounded; Spangler v. Jacoby, 14 Ill. 297; Supervisors, &c. v. People, 25 Ill. 181; Morrison v. Lawrence, supra; McCormick v. Bay City, 23 Mich. 457 (1871); Delphi v. Evans, 36 Ind. 90 (1871); Cutler v. Russellville, 40 Ark. 105; Town of Olin v. Meyers, 55 Iowa, 209. Accordingly a provision of statute that no ordinance for the improvement of a street should be adopted, except upon the report and recommendation of the city board of improvements, and requiring that such report be recorded in its proceedings, is mandatory, and the report and recommendation were held jurisdictional, and not provable by parol evidence. Reynolds v. Schweinefus, 1 Sup. Court, Cin. (Ohio) Rep. 215. Where a general law required the yeas and nays to be called and recorded on the passage of all ordinances, it was held by the Supreme Court of Colorado that when the record failed to show such calling and recording as to an ordinance concerning misdemeanors, the ordinance was a nullity and a conviction under it void. Tracy v. The People, 6 Col. 151. Where a local improvement is proposed, and it is not petitioned for by a majority of the owners of property to be assessed, the charter declares that it shall be ordered only by the vote of at least three-fourths of all the aldermen present, such vote to be by ayes and nays on the record of the common council; if, when the record is presented, it does not appear that the improvement was ordered by a vote of three-fourths of the aldermen present, by vote entered by ayes and nays, the ordinance is void, and judgment for a sale of the property to pay the local assessment cannot rightfully be entered. Rich v. Chicago, 59 Ill. 286 (1871). Effect of such a provision on the power to make a contract by parol. Indianola v. Jones, 29 Iowa, 282 (1870); post, sec. 449, and note. 2 Logansport v. Crockett, 64 Ind. 319; Mayhew v. Gay Head, 13 Allen, 129; Steckert v. East Saginaw, 22 Mich. 104; Delphi v. Evans, 36 Ind. 90; Commissioners v. Hearne, 59 Ala. 371; Musselman v. Manly, 42 Ind. 462; Vawter v. Franklin College, 53 Ind. 88. See preceding note. 4 Bloom v. City of Xenia, 32 Ohio St. 461; S. P. Morrison v. Lawrence, 98 Mass. 219; State v. Hudson, 5 Dutch. (N. J.) 478; Delphi v. Evans, 36 Ind. 90. This is not the rule in New York. Cases supra. 5 Logansport v. Legg, 20 Ind. 315 (1863); Ferguson v. Chittenden Co., 1 Eng. (6 Ark.) 479 (1846); Price v. Railroad Company, 13 Ind. 58 (1859); McCracken v. San Francisco, 16 Cal. 591; Pimental the law of corporations; but whether, in favor of the holder of negotiable securities issued, or purporting to be issued, under authority conferred by the legislature, the corporation might not, in some cases, be estopped to show that a quorum was not present or that the requisite number did not concur in the act, is a question which remains, perhaps, to be settled. It is clear that members of a council cannot properly act upon questions in which their own pecuniary interest is directly and specially involved.2 But it has been held in Michigan that proceedings on the part of a municipal corporation ordering a paving improvement are not rendered invalid on the ground that two of the aldermen who formed part of the quorum of the common council which ordered the improvement, and without whose presence there would have been no quorum, were petitioners for the improvement and owners of property liable to assessment therefor. It might be otherwise, the court concede, if the common council acted as commissioners of apportionment in making the assessment upon the property that was to bear the burden, or on the confirmation of a report in which the interest of these aldermen was directly involved.3 v. San Francisco, 21 Cal. 351; State v. Wilkesville, 20 Ohio St. 288. Number present and acting, how proved. 13 Ind. 58, supra. Presence of quorum, when presumed. Insurance Company v. Sortwell, 8 Allen (Mass.), 217. Ante, secs. 286, note, 267, note, 285, note, 286, note. 1 See ante, sec. 89; post, chapter on Contracts. Construction of charter provision requiring unanimity. Post, sec. 310. 2 Members of a municipal board are disqualified to vote therein on propositions in which they have a direct pecuniary interest adverse to the municipality they represent. Oconto County Sup. v. Hall, 47 Wis. 208; Pickett v. School Dist., 25 Wis. 551; Coles v. Williamsburgh, 10 Wend. 659; Walworth Bank v. F. L. & T. Co., 16 Wis. 629; United Brethren Church v. Vandusen, 37 Wis. 54. Post, chap. xiv.; ante, sec. 237, note. There is an - express provision to this effect in the English Municipal Corporations Act of 1882, sec. 22. 8 Steckert v. East Saginaw, 22 Mich. 104 (1870), where the reasons for the distinctions taken are clearly stated by Cooley, J. In the same State it was also held that the mayor of a city, who was a practising lawyer, might lawfully be employed, when there was no collusion or fraud, and no doubt as to the necessity and value of his services, by a resolution of the council to appear and defend a suit against the city, and that he could recover the value of his services. Niles, Mayor, &c. v. Muzzy, 33 Mich. 61 (1875); s. c. 20 Am. Rep. 670. Right of corporation to contract with its officers or councilmen. Ante, sec. 283, note, and cases cited; post, sec. 443, note. NOTE. - In Rushville Gas Co. v. Rushville (Ind. Sup. Ct. 1889, MSS., 41 Alb. L. J. 143), the city council was composed of six members, all of whom were present and qualified to vote upon a resolution, which, when submitted, was voted for by three members, the other three, though present, refusing to vote. The court held that the resolution, having received the vote of a majority of a quorum, although not of a majority of all present, was legally adopted. It deserves further consideration whether this result is consistent with the majority rule applicable to definite bodies. CHAPTER XI. CORPORATE RECORDS AND DOCUMENTS. - CUSTODY. INSPECTION. - RIGHT OF § 293 (231). Power to appoint Clerk pro tem. - Corporations have the incidental power, if the regular clerk is temporarily absent, to appoint a private person a clerk pro tem., for the purpose of making the entries of what is transacted at the corporate meeting. His entries, made by the direction of the corporate authorities, or entries made by the regular clerk from memoranda furnished by the clerk pro tem., are competent evidence of the proceedings of the meeting.1 The clerk or officer of a § 294 (232). Amendment of Record. New England town, who has made an erroneous record, may, while in office (but not afterwards), or after a re-election to the same office, amend the same according to the truth, being liable, like a sheriff who amends his return, for any abuse of the right; as, where he makes a fraudulent or untruthful amendment, the town is not concluded or 1 Hutchinson v. Pratt, 11 Vt. 402 (1839). See also Rex v. Mothersell, 1 Stra. 93, also referred to infra. Board of public works of a city is a quasi corporation, and the nature of its duties, laying out streets, establishing grades, sewers, &c., requires it to keep a record of its proceedings, although no such record is in terms provided for. Larned v. Briscoe, 62 Mich. 393 (1886). Sufficiency of memoranda. Louisville v. McKegney, 7 Bush (Ky.), 651 (1870). Failure of clerk to take oath of office does not invalidate his record. Stebbins v. Merrit, 10 Cush. (Mass.) 27; ante, sec. 214. Signature of chairman to minutes affixed at a day subsequent to the meeting held sufficient, under a statute requiring the minutes of corporate meetings to be signed by the chairman. Miles v. Bough, 3 Gale & D. 119; Inglis v. Railway Co., 16 Eng. Law & Eq. 55. See also ante, chapters relating to Corporate Meetings and Corporate Officers; post, sec. 331; Logansport v. Crockett, 64 Ind. 319 (1878), citing text. 2 Ante, secs. 29, 30, as to New England towns. New Haven, &c., Railroad Co. v. Chatham, 42 Conn. 465. Speaking of the records of the town of Concord, Massachusetts, Ralph Waldo Emerson in his Concord Address says: "I have read with care the town records themselves. They exhibit a pleasing picture of a com munity almost exclusively agricultural, where no man has much time for words, in his search after things; of a community of great simplicity of manners, and of a manifest love of justice. I find our annals marked with a uniform good sense. The tone of the record rises with the dignity of the event. These soiled and musty books are luminous and electric within. The old town clerks did not spell very correctly, but they contrive to make intelligible the will of a free and just community." bound by an erroneous record, whether made by design or accident, unless when it would on general principles be estopped.1 1 Cass v. Bellows, 11 Fost. (31 N. H.) 501 (1855); Harris v. School District, 8 Fost. (28 N. H.) 58, 66 (1853); Gibson v. Bailey, 9 N. H. 168; Whittier v. Varney, 10 N. H. 291; Welles v. Battelle, 11 Mass. 477; Low v. Pettengill, 12 N. H. 340; Pierce v. Richardson, 37 N. H. 306; Scammon v. Scammon, 8 Fost. (28 N. H.) 429; President, &c. v. O'Malley, 18 Ill. 407 (1857); Mott v. Reynolds, 27 Vt. (1 Wms.) 206 (1855); Boston Turnpike Co. v. Pomfret, 20 Conn. 590 (1850); compare Covington v. Ludlow, 1 Met. (Ky.) 295, below cited. The necessity and reasonableness of the doctrine stated in the text are thus expounded by Parker, C. J., in Welles v. Battelle, 11 Mass. 477, 481 (1814): "We have had frequent occasion to perceive the great irregularity which prevails in the records of our towns and other municipal corporations; and the courts have always been desirous to uphold these proceedings, where no fraud or wilful error was discoverable. Too much strictness on subjects of this nature would throw the whole body politic into confusion (Kellar v. Savage, 17 Me. 444). For it cannot be expected that, in all corporations, persons will be every year selected who are capable of performing their duty with the exactness which would be useful or convenient. . . . The first entry made by the clerk here [that an officer was sworn into office] was certainly defective, but the defect is properly cured by the subsequent entry of the existing clerk, he being the same person that officiated at the time of the first entry. He will be sufficiently watched by interested parties, to render a deviation from truth neither safe nor easy." The doctrine of the case in 11 Mass. 477 was followed and applied in Chamberlain v. Dover, 13 Me. 466 (1836), where it was further held that the municipal body was not bound by an erroneous record of a clerk, even though the plaintiffs, confiding in its correctness, had made a building contract with the "contracting and building committee" named in the record. The meeting in this case, which attempted to confer this power upon the committee, was not a legal one, because not held at the time and place appointed; and it was considered by the court that the plaintiff's remedy was against the committee, and not against the town, if the former acted without authority. See further as to correcting and amending records, Williams v. School District, 21 Pick. 75, holding that where two different, but not contradictory records were made up by the clerk from memoranda taken at the meeting, both were originals and competent testimony. Clerk cannot amend records after he is out of office. School District v. Atherton, 12 Met. (Mass.) 105 (1846); Hartwell v. Littleton, 13 Pick. (Mass.) 229, 232 (1832). Contra, to the effect that he may amend, though out of office at the time, see Gibson v. Bailey, 9 N. H. 168 (1838); Gibson v. Bailey followed in Missouri in one case, Kiley v. Cranor, 51 Mo. 541, 543 (1873). But may, while he is in office. Bishop v. Cone, 3 N. H. 513 (1821); Hoag v. Durfey, 1 Aiken (Vt.), 286 (1826); Chamberlain v. Dover, 13 Me. 466 (1836). That successor cannot make the amendment. State v. Williams, 25 Me. 555, 561; 29 Me. 523; Taylor v. Henry, 2 Pick. (Mass.) 397. But the corporation might, in proper cases, authorize the successor to supply the omitted, or correct the erroneous, entry. Hutchinson v. Pratt, 11 Vt. 402, 419. Bonds of a city which by statute are directed to be signed by the mayor, but which were in fact signed by the ex-mayor, were held to be void even in the hands of a bona fide holder for value. Coler v. Cleburne, 131 U. S. 162 (1889). In New Hampshire it is the practice to allow these amendments only upon the order of the Supreme Court or Court of Common Pleas by the officer by whom they were made, even after he has ceased to hold the office. A clear case must be made out. The court do not permit any erasures or interlineations of the original record, but require the amendment to be written upon a separate piece of paper, signed by the proper officers, and with it a copy of the order allowing the amend § 295 (233). Same subject. In a case in Vermont, the clerk of the town, pending the trial, amended the record by adding his signature as clerk to the record of the warning for the meeting in question. His right to do so, though he had meantime been out of office, but was again restored, was sanctioned by the Supreme Court, Redfield, C. J., remarking: "We think, in general, it must be regarded as the right of the clerk of a town or other municipal corporation, while having the custody of the records, to make any record according to the facts. His having been out of office, and restored again, could not deprive him of that right. But even an officer could not alter or amend a record upon the testimony of third persons ordinarily, and ought not to do it upon his own recollection, unless in very obvious cases of omission or error, of which the present might fairly be regarded as one, probably. Such amendments should ordinarily be made by the original documents or minutes." 1 The right § 296. Right of Clerk to amend Records ex parte. of the clerk ex parte to amend the records of the proceedings of town corporations was very thoroughly considered in a case in Connecticut.2 The statute of that State requires town-clerks to keep the record books of their respective towns, and to enter truly all the votes and proceedings of the town. The town-clerk made an entry showing that at a town-meeting held in 1843, the town assumed to the plaintiff a liability to commence January 1, 1844. If the time. thus stated was the true time, the plaintiff had a cause of action against the town. In 1849 the clerk, not upon his own personal knowledge, or upon any written memorandum, but on the information of others (with the correctness of which, however, he was perfectly satisfied), amended the record so as to show that the liability of the town was not, by the vote, to commence until April 1, 1844. If this was the true time, the plaintiff had no cause of action. The majority of the court (three judges against two) held that the clerk, ment; and this paper is annexed to the original record. Pierce v. Richardson, 37 N. H. 306, 311, per Bell, J. 1 Mott v. Reynolds, 27 Vt. (1 Wms.) 206, 208 (1855). Amendments in open court of town record by clerk of the town, pending trial to which the clerk is a party, and to meet a particular decision of the court, disregarded. Hadley v. Chamberlin, 11 Vt. 618 (1839). Commented on and distinguished. Mott v. Reynolds, 27 Vt. (1 Wms.) 206 (1855). 2 Boston Turnpike Co. v. Pomfret, 20 Conn. 590 (1850). The subject of amend ments of the records of the proceedings of a common council in Connecticut, when it can be made by the clerk and when by order of court upon mandamus, is con sidered in Samis v. King, 40 Conn. 298 (1873). Parties to mandamus to compel the clerk of a city to amend record. Farrell v. King, 41 Conn. 448 (1874); Logansport v. Crockett, 64 Ind. 319 (1878). |