Commonwealth ex rel. Hall v. Canal Commissioners

The opinion of the court was delivered by Gibson, C. J. It is usually said that a power of a private nature —that is, a power to do a private act—must be executed by all to whom it is given; but that a power of a public nature, or to do a public act, may be executed by a majority. That there is a distinction, is undoubted; but that the specific ground of it is to be found in the nature of the act, is not quite so clear. In Withnell v. Gartham, 6 Term Rep. 388, a power to appoint a private charity which had been delegated by a testator to the ■ vicar ahd churchwardens of the parish, was held to have been well executed by a majority of 'the churchwardens, because they were a quasi corporation; while, on the other hand, an order of affiliation was quashed 471 in The Queen v. West, 6 Mod. 180, because it was founded on an affidavit made before only one of the justices, though the act of taking it was certainly of a public nature. If then, the general rule is as it is usually stated, these two cases must be excepted from it. The criterion, however, seems to be not so much the character of the power, or of the act to be done by virtue of it, as the character of the agent appointed for the performance of it. Perhaps the result of the cases is, that an authority committed to several as individuals, is presumed to have been given to them for their personal qualifications, and with a consequent view to an execution of it by them all; but that where it is committed to them as a body, there is no presumption in the way of the usual method of corporate action by a majority. In'the case of the Baltimore Turnpike, 5 Binn. 481, viewers appointed by the quarter sessions to assess damages done to the soil by a turnpike company, were held to be such a body. That case is identical with the present, except that itis notnear so strong, inasmuch as the official and quasi corporate character of the canal appraisers, keeping,as they must, a record of their proceedings, having succession, and being called a board in the act by which they are constituted, is more distinct than that of viewers of damages who become functi officio by performance of the single act for which they were appointed. So, in the County Commissioners of Allegheny v. Lecky, 6 Serg. & Rawle 170, a power to purchase a site for a jail, was held to be well executed by a majority, having been given to the commissioners, not individually but collectively by their official title, and therefore carrying with it an apparent intent that it should be executed by them as a board. In the case before us, the appraisers could not have acted otherwise. The principle of execution by a majority was doubtless borrowed from the practice of corporations, with whom, as with every associated body, it is a principle of necessity; for it would, in most cases, be impossible to obtain the assent of all the members of a numerous assembly: and this, perhaps, is the consideration which lies at the root of the whole matter. In the Commissioners v. Lecky, it was said by the chief justice, that the rule which requires execution by all, has never been applied to public business of a judicial or of a deliberative nature; or to cases where powers are given to corporate bodies—all which is incontestable. But all judicial and deliberative bodies partake strongly of the nature of corporations. Every legislature is strictly a court; whence it is said by Sir Edward Coke, that the British parliament, consisting as it does of the king, lords, and commons, is the highest, most absolute, and most honorable court of justice in England; 1 Inst. 109 a; and I believe it is still customary in some of the eastern states to call a legislature the general court. County commissioners have always been at least quasi corporations; in which respect they differ from commissioners to take depositions, and from arbitrators chosen for their presumed fitness for the business committed to them, who, 472 where the contrary is not specified in the terms of their appoint-E-nent, must all join. It may be safely said, then, that any duty of n aggregate organ of the government, may be performed by a lajority of its members where the constituting power has not ex-ressly required a concurrence of the whole. Now these appraisers rere constituted a board for the performance of duties of a public, eliberative, and judicial nature: they were, in short, a tribunal of ppellate jurisdiction. Though not apparent on the face of the sturn, it is conceded that there ivas a vacancy by resignation in me membership at the time of the assessment. But that is a fact which, instead of weakening the relator’s case would strengthen it, and the possibility of its recurrence may make it a legitimate ground of argument; for it can not be supposed that the functions of the board would be suspended, to the detriment of the public, by the loss of one of its members. Private business might bear to be postponed till such a loss could be repaired, but public affairs are usually so urgent that they could not. Thus it was held in Townsend v. Wilson, 3 Mad. Chan. Rep. 361; S. C. 1 Barn. & Ald. 608; that the survivors of three trustees, to whom a power to sell as well as to fill up vacancies in their number had been given by deed, were rendered incompetent to act, by the death of one of them; and that their competency could be restored only by a new appointment. But in Doe dem. Read v. Godwin, 1 Dowl. & Ryl. 259, where Parliament had vested the prizes of a city lottery in five trustees by name, with power to fill up vacancies by death before the drawing and conveyance of the prizes (city lots) to the fortunate ticket-holders, it was held in ejectment that the conveyance of a prize by four of the five (one having died) was effectual and good. In every aspect, then, it appears that two members of the board are competent to constitute a quorum; and that an appraisement by it, thus constituted, is valid. As the parties desire no more than to have the opinion of the court on the point presented by the merits, we forbear to inquire into our power to issue a mandamus to officers who represent the government; or to make any final disposition of the rule.