Palmer v. Conway

22 N.H. 144 | Superior Court of New Hampshire | 1850

Woods, J.

It is objected, that Smith and Eust had not competent authority to act upon the petition, in this case, after the decease of Parker, who was one of the three road commissioners of the county. It is conceded by the counsel for the petitioners, that according to the rule of the common law, applicable in cases of this character, the exception must prevail, that, where a joint authority is to be executed by public officers, all must meet, or have opportunity to act; but that a majority may execute the authority conferred. It is contended, however, that the rule of law thus stated, has been changed by sect. 13, chap. 1, of the Eevised Statutes, which provides that “ all words purporting to give a joint' authority to three or more public officers, shall be construed as giving such authority to a majority of them.”

Whether the provisions of this section are to be construed, as going farther than merely to adopt the common law rule, and to give it the form and sanction of a statutory enactment, we need not now decide. Upon further consideration it may be found that it was intended to change the rule of law, and to confer the authority to execute the duties upon a majority of the public officers appointed for the purpose, without giving notice or opportunity to the others to be present, and act in the case. Or it may be found that no such purpose, or design, was entertained by the legislature. It would be a strange state of the law, common or statute, that should require the appointment, or election of a board of officers, for the discharge of some important joint duty, while, at the same time, it should confer upon a bare majority, the power to execute the entire duty, without even requiring that notice or opportunity to act should be given to the minority. Before the passage of the act referred to, after the meeting of the entire board, and opportunity given to all to take part in executing the power conferred, the action of a majority was sufficient. And, most certainly, if the same necessity does not still exist, of giving opportunity, at least, to all upon whom the duty to discharge a joint public trust shall rest, the change will not be found to result from the explicitness of the language leading to that conclusion, but from some necessity of such construction, to avoid some mischief not now seen, which may lead the Court, hereafter, to give the act an interpretation in accordance with that view of the case. From the facts disclosed in the present case, however, it appears, that after the decease of Parker there was no board of road commissioners, such as the statute requires, and, therefore, there were not three persons in office to whom the statute “ purported to give a joint authority,” upon a majority of whom, the statute regulating the choice of road commissioners, and prescribing their duties, could confer the authority to act in the case under consideration. The true and solid ground of Objection to the authority of Smith and Rust to act, was, that at the time of their action there were not three officers then in authority as road commissioners, elected or appointed in any of the methods authorized by the statutes, competent to act in the case, a majority of whom did act. And until there was a full board competent to act, there could be, as we conceive, no action of a majority. Whatever may have been the intention of the legislature, with regard to conferring authority upon a majority to act when the board is full, we think it quite clear that, when there is not a full board, the statute confers no additional authority not before existing, such as is now claimed, upon those in office, until the vacancy or vacancies be filled.

By the first section of chap. 20, of the Revised Statutes, three road commissioners are required to be elected in each county. And in case the person or persons elected shall decline to accept, remove from the county, resign, die, become insane, or when, from manifest hazard to the public interest, any vacany or vacancies shall be declared, in the manner pointed out by the statute, it is made the duty of the justices of the Court of Common Pleas, to fill such vacancy, by appointment. Rev. Stat. chap. 20, <§> 11. And repeated acts have been passed, treating the interest of a commissioner, in any particular petition, as creating a vacancy in the board pro Jiao vice, and authorizing the filling the vacancies thus existing, for the time being, by the appointment of some person disinterested, to fill the same. Rev. Stat. chap. 30, <§> 6 ; Pamphlet Laws, chap. 358, § 2; and chap. 996, § 1.

So, also, chap. 51, § 2, Rev. Stat., provides, that if, after giving notice of the time and place of hearing, as is required, “ any one of the commissioners shall be unable to attend agreeably to the notice, &c., the two commissioners, who do attend, may appoint some suitable person to act in his stead.”

Here, then, it is manifest, that there is no necessity for extending the authority of the commissioners beyond the plain purposes of the legislature.

Ample provision is made for filling any and all vacancies that may occur during the pendency of any proceeding before any board, and we are of opinion, upon a careful, consideration of the statutes referred to, that there is no ground, as there is no occasion, for holding that a board, consisting of less than three, has any authority to act in any case, and that, if a majority can act at all, it must be a majority, at least, of a full board of commissioners in authority at the time.

We are therefore clearly of opinion that the exception interposed by Freedom and Conway to the acceptance of the report was well taken and must prevail.

Report set aside.