Townsend v. Hazard and Others

Durfee, J. We do not think the report of the commissioners was invalid merely because it was not unanimous. We think the true rule is, that where three or more persons are charged with a judicial or quasi judicial function under an authority derived, not from the parties in interest merely, but from a law or statute of the state, though all must hear and deliberate together, a majority may decide, unless it is otherwise provided. The counsel for the défendants admit that this is a rule when the power to be exercised is of a public nature, but contend that in mere private causes the decision must be unanimous, though the power to decide be given by statute; a power *443 being public, they claim,'within the meaning of the rule, not because given by statute, but because the business to be transacted is a matter of public concern. Most of the cases cited, in which a majority decision has been sustained, are cases in which the public was interested, either in the question decided or in the matter or proceeding in pursuance of which the question arose. In such cases the decision of a majority would be valid, even if the rule were subject to the limitation for which the defendants contend; and, doubtless, the language used by the courts, in deciding some of them, favors the inference of such a limitation. But we have not been referred to any case in which it has been held that the rule does not extend, in the case of persons authorized to decide by law, or public statute, to cases in which the public has no interest beyond its general interest that there shall be an end of litigation. On the other hand there are cases even among these, in which the rule contended for by the defendants, would have sufficed, in which the broader rule was recognized. Thus in Crocker v. Crane, 21 Wend. 218, where commissioners were authorized by statute to receive subscriptions to the capital stock of a railroad company, and to distribute the stock, if subscribed in excess of a certain sum, among the subscribers in such manner as should be most conducive to the interests of the corporation, it was held, that the distribution of the stock made by only a majority, was not on that account invalid. The court said : “ It has long been perfectly well settled, that when a statute constitutes a board of commissioners dr other officers, to decide any matter, but makes no provision that a majority shall constitute a quorum, all must be present to hear and consult, though a majority may deoide.’’ And see Woolsey v. Tompkins, 23 Wend. 324 ; Upham v. Whiteside, 23 Wend. 9. In the case of the Baltimore Turnpike Company, 5 Binn. 481, six commissioners were appointed by a court in pursuance of a statute, to assess the damages caused by the location of a turnpike, five of whom agreed and the other dissented, and their action was sustained. Here it may be said, that the establishment of a turnpike is a matter of public concern ; but, allowing this, the court assigned reasons for its decision, which would *444 have been as applicable, if there had been no interest of the public concerned. The dictum of the court in Patterson v. Leavett, 4 Conn. 53, recognizes the broader rule as applicable to the awards of referees and auditors who derive their power to administer justice by acts of the law. In Farwell's Petition, 2 N. H. 123, it was thought that a majority decision of referees acting under a rule was valid. Wood-BURY, J. said : “ It is a well settled rule, that if all who are appointed under a public statute to a judicial duty, unite in the performance of it, but disagree in final judgment, the opinion of the majority is binding.” This shows how the rule was regarded by the court, though its application to a reference under a rule of court may perhaps be questioned. In Moffitt v. Jaquins, et. al. 2 Pick. 331, an extent of an execution on land was sustained, where one out of three appraisers disagreed to the appraisement required by the statute. A different decision was however previously made by Justice Story in United Stales v. Slade, 2 Mason, 71. A principal reason why unanimity is not required, is the delay which might ensue if it were required. This reason is applicable in private causes as well as in matters of public concern. Indeed a cause becomes public, in a certain sense, by its pendency in court, and the public is interested to have it disposed of with as little delay as is consistent with the proper administration of justice. Coke Lit. 181, b. The first exception is overruled. But though a majority may decide, all should be present to hear and deliberate, and we think the report, at any rate when not signed by all, should show affirmatively that all were so present. Short v. Pratt, 6 Mass. 496 ; Odiorne v. Seavey, 4 N. H. 53. Here the report did not show this, and being objected to on that account, should have been recommitted for correction, unless there was good reason for rejecting it altogether. In this view we sustain the second, third and fourth exceptions. The fifth exception relates to the refusal of the court to reject the report on motion of the defendants, based on certain testi *445 mony which, if true, showed that the two commissioners who signed the report, viewed the premises unaccompanied by the non subscribing commissioner, and at different times conferred together in his absence and without notice to him. The mere fact that such a view and such conferences occurred, there being no improper motive, would not in our opinion invalidate the proceeding, if all were present at the hearing and all fairly conferred before and when the report was finally agreed upon. The exception states testimony, and upon the testimony stated the court may have found that this was the case. The exception does not show any matter of law in which the court erred. We cannot of course revise its judgment in matters of fact upon a bill of exceptions. We overrule the fifth exception. A majority of the court think the commissioners were not entitled to amend their report without leave, and this being so, the court erred in granting leave to amend in vacation without the consent of the parties and without notice to them. The amendment was afterwards allowed and the former leave to amend confirmed by the court in term time, by a judge who had taken no part in the previous hearing. To this the defendant objected, claiming a right to be heard before the judge who alone had heard the testimony at the former trial. We think the defendant was entitled to be heard by that judge, or to have the cause heard de novo by the judge then presiding. We therefore sustain the sixth exception. The seventh exception is overruled. We think judgment should not have been entered by a judge who had not heard the cause, without hearing the same so long as any thing remained open for hearing. In this case the parties had not been heard either upon the allowance of the .amendment or upon the report as amended. The order made in vacation, overruling exceptions to the report, was made after the record had been essentially changed. The case, therefore, on which the order was made, was not the case in which the hearing had been had. We sustain the eighth exception, and remit the cause to the Court of Common Pleas for rehearing. Exceptions {in part) sustained.