Gallup v. Tracy

Ellsworth, J. One of the questions made in this case is, whether the repeal of the statute on which the action is brought, since the commencement of the action, defeats its further prosecution. We think the plaintiff had acquired a vested right in the oysters which he had laid down, and to the occupation of the place where he laid them down, unless there be a defect in his title, which we shall consider in the sequel, and therefore, that the repeal of the statute did not take away this right of property. There is some question, whether the vote of Ledyard extends to the waters of the Poquetannoek cove. We think it does. This was undoubtedly the idea of the town, and the committee of the town; for- this committee was the only one appointed to grantlicense in any and all the waters of the town. This however, would not be decisive of the [17] law of the ease, though it is justly entitled to weight in construing the vote, or rather in applying it to the subject matter in dispute. This cove is little else than the tide waters of the river Thames, rising and setting into it from the general channel, and so absolutely does the cove constitute a part of the river, that the cove is not sensibly affected by the small stream which runs into it from the land side. The margin of this river throughout, abounds in inlets, indentations and recesses, according to the form of its banks and the extent of its marshes, but none of them are of any considerable size or depth, or capable of any general use, independently of the river itself. They are, then, mere dependencies and reservoirs of its waters. The remaining question is attended -with somewhat more difficulty, and on general principles it may seem, at first view, as if it should be decided for the defendant. We refer to the want of consent of a numerical majority of the committee of the town of Ledyard, to the plaintiff’s appropriation to himself of the place in said cove in which he planted the oysters in question. We make no question, that the general principle of law is, that public agents may act by majorities where all are present, or where all have notice to be present; and, generally, not otherwise. 23 Wend., 211. But the question here is, of how many the committee consisted. If of three only, these two having given consent, it is enough, unless the fact that the other one had not notice to be present, is fatal to the plaintiff’s title or license. Three of the four members of the committee, strictly, may be said to have licensed and approved the location and appropriation by the plaintiff, two by express act, and the plaintiff of course, if he could be counted on the occasion; but if he could not, because he was the party to be licensed, and we think he could not, then the committee may be held to have consisted of three only, as in the case of the death of one of the number-, or his inability to act, by reason of absence from the town, sickness, insanity or interest. We think the plaintiff need not be counted as [18] one, and so there were only three who could consent to the appropriation by the plaintiff; and two of the three have consented. This is a reasonable construction of the statute, which only requires license or consent from the committee, whose action is not to be likened to the formal adjudication of a board of judges, or assembled magistrates. Such a construction of the duties of this committee as we adopt, we are persuaded is in harmony with the general usage, and the general understanding of the people of the state, and of the legal profession; and were we to decide otherwise, we should do violence to this common sentiment, and, we fear, disturb rights of property universally recognized and long enjoyed. This statute is not unlike the one which requires the consent of selectmen, where owners wish to set out trees in the highway, in front of their lands. The consent of all the selectmen is not asked, nor of a numerical majority of all, if some of them can not act, by reason of absence, sickness, See. Without meaning to depart from the well-established law as to the manner in which public powers should be executed, or to lay down an absolute and universal rule, we incline to hold that the plaintiff’s license in this instance was properly enough given, and that it is sufficient. Damon v. Granby, 2 Pick., 352. Jones v. Andover, 12 Mass., 150. 3 T. R., 592. 6 T. R., 388. 6 Johns., 39. It is further said that the committee should have been assembled for consultation, or that all should have had notice of the assembling; and that then, the majority of the whole could have given consent. This depends upon the view taken of the character of the committee. We do not consider them to be a board necessarily to be assembled, but as having power conferred by statute to give license and permission, seriatim. They certainly are not a board, in common parlance; they have no fixed place of acting or consultation, no record, no clerk, no time and no mode of proceeding. They act at once when and where a license is wanted; and to impose upon them, now, the formalities and rules of boards, requiring to be regularly convened before they can act, will essentially frustrate the object of their [19] appointment, and needlessly embarrass the enjoyment of these minor rights and privileges. We think it wiser and more in harmony with general usage, to hold that a committee like this, need not be assembled to act, and may act by majorities of such as are competent to perform the duty. We advise judgment for the plaintiff. In this opinion the other judges, Stores and Hinman, concurred. Judgment for the plaintiff.