Wesleyan Cemetery v. Woodruff

delivered the opinion of the court.

We suppose that referees, when appointed under the code, *217possess judicial functions; that the authority conferred is to hear and determine the cause, for we find it stated, “the trial before them shall be conducted in the same manner as a trial by the court; their report upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action was tried by the court; when the referee is to report the facts, the report shall have the efiect of a special verdict.”

With the exception of the power to render judgment and issue execution, it would seem the referees possessed all the authority of the court who appointed them, to hear and decide upon the matters submitted.

It is well settled that where a trust or authority is delegated to several persons for mere private purposes, the concurrence of all is necessary to its due execution. Kyd on Awards, 106; 6 Johns. 40, Green v. Miller; 5 Ohio, 489, Young v. Buckingham Co. Litt. 181 b.

' But when the power conferred is of a public nature, or to decide a question judicially, a majority of those vested with authority may determine the question, though as a general rule all ought to be present to hear the proofs and arguments adduced by the parties interested. 1 Bos. & Pul. 229, Grindley v. Barker; 2d ib. 31, Cook v. Loveland; Johns. 500, Orvis v. Thompson; 3 T. R. 592, Rex v. Beeston, 5 Ohio, 489, supra. In this last case, our supreme court held, that the report of a majority of the commissioners appointed by the court of common pleas, to appraise lands condemned for public uses, would bind the minority, and justified their decision on the ground the power conferred was of a public nature. 11 Ves. 158, Watson v. Duke of Northumberland.

This principle regulates the action of every judicial tribunal, and is that upon which the right of the majority of the judges to determine all facts litigated before them, depends. The organization of courts is but the deputation of power, confided by the government of the country, and the commission granted to those who administer the law contemplates, not unanimity in the opinions of all, but their joint award only. *218It can be required of jurors alone, that they should all agree before a verdict can be rendered.

We think, then, that the report of a majority of the referees, appointed by the court, is their judgment under the submission, and unless it is set aside for sufficient cause, will be final in this case.

The second question reserved, must be examined as if it were now made to general term, upon the record of the case, determined in the same manner, at special term; if no exception has been taken to the competency or relevancy of the testimony offered before the referees, at the time it was offered, and properly noted upon the proceedings; if the referees themselves have not been requested to state the facts found by them, and their conclusions of law separately, we suppose their award can not be re-examined, set aside, or modified, unless the error appears in the proceedings themselves; whether they rendered a larger sum than the evidence justified, or allowed less to the successful party than he might properly claim, is not matter for our consideration ; we must leave the parties where we find them. This is the course pursued by the New York courts, under their code which is very similar to ours. Voorhes prac. 295 ; 2 Code Rep. 148, Smith v. Caswell; 11 Howard P. R. 412, Lakin v. N. Y. & Erie R. R. Co.

Remanded for judgment on the report.