28 Mo. 119 | Mo. | 1859
delivered the opinion of the court.
By the second section of the act organizing Phelps county, approved November 13, 1857, George M. Jamison, of Craw
It appears from the record that on the 20th January, 1858, Cyrus Colley and George M. Jamison reported to the county court that they had located the county seat on a tract of land described in a deed, which they presented, executed by Edward W. Bishop, and on the next day the report was approved by the court. It does not appear on what day the commissioners met for the purpose of entering on the performance of their duty, but it was shown that Gideon R. West, of Osage county, failed to qualify or ' to act; that the other commissioners had no communication with him on the subject of the location, and that only two of them "ever qualified or acted in making the location. On the 9th February, 1858, a petition was presented to the court, purporting to be signed by James Woods and 615 other tax payers of the county, complaining of the action of the commissioners in locating the county seat and asking the court to make an order to remove the seat of justice to another place, and at the same time a motion was filed, grounded on the petition, for the appointment of five commissioners to select another site. Seventeen reasons are assigned in the motion, many of which are inconsistent with each other, for some of them assume
It is evident that an appeal did not lie from any order the county court had made touching the petition to remove the county seat, for no final decision had been made by the court on the subject. The petition had been neither granted nor refused, and before the appeal was taken an order had been made continuing the matter until the next term ; and if an appeal will lie at-all from the judgment of the county court in a proceeding to remove a county seat, it would only lie in the case of a final judgment.
The proceedings of the appellants in the county court were intended in the beginning only to procure the removal of the county seat according to the provisions of the act to provide for the removal of seats of justice. (R. 0. 1855, p. 513.) There is nothing in the record to show that a motion was
The judgment of the circuit court dismissing the appeal will be affirmed, but we think it proper to say that, in our opinion, the report of the two commissioners shoiild have been rejected, and the county court ought to vacate the order approving it. Three commissioners were appointed in order that each of them might have the benefit of the advice and information of the others, and it was supposed that their associated counsel and judgment woxild produce a wiser and more satisfactory result than if only one or two acted. Where a public act requiring the exercise of judgment is to bo performed by three or more commissioners appointed in a statute, all of them must meet and confer, though the question may be determined by the opinion of a majority, unless the concurrence of all is required. When all are present and acting, two may decide; but two can not act without at least consulting with the thirdfor it might happen that if the third one had been present, his opinions and arguments would have influenced the others and changed the result. (Rogers, ex parte, 7 Cow. 530, note.) The statute appointing these commissioners permits a majority of them to locate the county seat, but it contemplated that all should meet