People v. Coghill
Before: Niles
Synopsis
Commissioners Appointed by this Legislature.'—-As a general rule, whenever the Legislature creates a Board of Commissioners, with discretionary power to decide upon matters of public interest, and has made no provision that a majority shall constitute a quorum, all must be present and consult, though a majority may decide.
Commissioners to Assess Swamp IÍand.—When an Act, appointing Commissioners to assess swamp lands, provides that they shall jointly view and assess upon each acre a tax proportionate to the whole expense, all the Commissioners must be present, both in viewing and assessing the land; and if only a quorum are present, the assessment is void, even if the absent Commissioner was w-ell acquainted with the land, and assented to the act of the majority by letter.
By the Court, Niles, J.: It appears from the findings that of the three Commissioners, Balsden, Eddy and Hicock, appointed by the [363]Board of Supervisors, only two—Eddy and Hicock—went upon or viewed the land for the purpose of assessing the same.
It appears, further, that at the time and place appointed by the Commissioners for a meeting to levy the assessment, only Commissioners Eddy and Balsden were present, Hi-cock being sick and unable to attend. The entire business of the assessment was transacted by the two members present, Hicock doing no more than to write to the others that he would agree to an assessment to be made in accordance with a mutual understanding previously had. The validity of the assessment thus made is now in question.
We think the assessment was clearly illegal. There are many authorities to the effect, that, as a general rule, where the legislature has created a Board of Commissioners, and conferred discretionary powers to decide upon matters of public interest, but has made no provision that a majority shall constitute a quorum, all must be present and consult, though a majority may decide. (Grindley v. Barker., 1 B. & P., 229; Crocker v. Crane, 21 Wend. 218; Babcock v. Lamb, 1 Cow., 239; Ex parte Rogers, 7 Cow. 526, note A and cases cited.) But be that as it may, the peculiar provisions of the thirty-third section of the Act “to provide for the management and sale of the lands belonging to the State,” under which these proceedings were had, are decisive of the question. It provides that “the Board of Supervisors, to whom the report shall be made, shall appoint three Commissioners, who shall jointly view and assess upon each and every acre to be reclaimed or benefited thereby, a tax proportionate to the whole expense, and to the benefits which will result from such works,” etc. (Stat. 1867-8, 516.).
The legislature having so distinctly declared that both in the acts of viewing and assessing, the Commissioners should act jointly, there can be no doubt that either of these acts performed by less than all of the members would be invalid.
It does not affect the question that Commissioner Balsden was well acquainted with the swamp and overflowed [364]
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