People v. Coghill

It appears from the findings that of the three Commissioners, Balsden, Eddy and Hicock, appointed by the *363Board 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 *364land of the district, or that Commissioner Hicock signified, by letter to the Board, on the day of its meeting, his assent to an assessment previously agreed upon. The requirement of the statute is unequivocal that the Board must act jointly, and the reasons for the failure to comply with the requirement cannot be material.

We are of opinion that the assessment was invalid upon the grounds stated, and the action to recover the assessment cannot be maintained. This renders it unnecessary to discuss other points made upon the appeal.

Judgment affirmed.