20 N.C. 521 | N.C. | 1839
after stating the case as above, proceeded as follows: Upon the important question, whether the site for the seat of justice has been definitively fixed by those who were appointed by the Legislature to select it, we entertain the same views which have been expressed by his Honor. Where a public act is to be done by commissioners for that purpose appointed, and the commissioners, or so many of them as by the terms of their appointment are required to act, do meet and confer, and a determination is made upon the subject by a majority of them, the majority will conclude the minority, and their act will be the act of the whole. Grendley v. Barker, 1 Bos. & Pul. 229. Exparte Rogers, 7 Cowan, 526. The act of Assembly authorised nine of the eleven commissioners to act. More than that number assembled, conferred, and resolved to fix on the site by a vote. The voice of the majority announced upon that vote, was the voice of the body; and accordingly the journal: after recording the vote, pronounces the result of it as the final decision of the board. After this decision, the board had nothing else to do; it was functus oficio. It adjourned sine die — and those of whom it had been composed had no right to re-assemble and vote that they had not selected a site.
The mandamus, therefore, which has been ordered, must be superseded. If the controversy is not otherwise adjusted, the seven commissioners are those who have yet to act upon this subject — and if they will not, it is upon them the Court must be invited to act.
We have considered the objections which were taken to the form of laying off the twenty-six acres, and concur in the opinion expressed below, that these are not well founded. We think the fair interpretation of Johnston’s first proposition is, that the parallelogram should be forty poles wide, comprehending the waggon-road, which was to be in the centre as near as might be — and also, that the parallelogram should extend so far as to reach the river — not that the entire western boundary of the land should but on the river.
One question has not been raised by the parties, but our attention has been necessarily called to it by the facts of the case. The County Court appointed commissioners to lay oif and sell the lots in the county town, before any such town existed. In doing this, we are of opinion that the Court misconstrued the act of Assembly. Though the words of the 12th section will admit of the interpretation that this appointment should be made at the first term after the enactment of the statute, to us, it seems clear that the Legislature meant the appointment to be made at the first term after the purchase or donation of the land selected for the town was completed, as directed by the preceding section. We regard, therefore, the appointment made by the County Court as premature — and revocable at least — if not absolutely void.
The judgment of the Superior Court must be reversed.
Per Curiam. Judgment reversed.