People v. Batchelor

Davies, P. J.

The only question which it is deemed necessary to consider is, whether the plaintiffs Loew and McConnell *312were duly and legally appointed "by the convention held on the 18th of December, 1857. They were undeniably so appointed, if all the aldermen were duly notified of that convention, although some of them failed to attend; or if it was not necessary to its legality that all the aldermen should have had notice of the meeting. It should be borne in mind, we think, in considering the question presented, that the privilege of attending was not that of the aldermen, but of the constituency they represented. It was their right that their voice should be heard in the appointments to be made; and such right cannot be taken away unless all provisions of law have been complied with. The meeting was to be convened by the board of aldermen, or by a majority of the- board of aldermen, and it was to be composed of the mayor and the board of aldermen or of a majority thereof. If the mayor should refuse to attend after notice of eight days to him, then it is made lawful for the board of aldermen, or a majority thereof, to proceed and make the appointments. (Sec. 1 of the act of April 10, 1855.) It was therefore competent for a majority of the board of aldermen to make the call for the meeting. But the statute proceeds to say that at the meeting there shall be present with the mayor, the board of aldermen, or a majority of the board. This provision was evidently intended to remove all doubts whether or not all of the aldermen should be present to constitute a legal meeting. It declared that a majority of the board were competent to act.

It was held by Eyre, Ch. J., in Grindley v. Barker, (1 Bos. & Pul. 236,) and adopted in our state in Green v. Miller, in 1810, (6 John. 39,) that where a number of persons are intrusted with a power, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will- be the act of the whole. So it was held in this court in the case of The People v. Walker, (23 Barb. 304,) 1st. That when a private authority is conferred on several, all must concur, unless provision be otherwise made. *3132d That where a public authority is conferred on individuals (not on a court) who are to act judicially, all must confer together, but a majority may decide. 3d. That in public cases not of a judicial character, a majority make a quorum, if a majority may decide. These positions are well sustained by the learned justice, who delivered the opinion in that case, as well by reason as by numerous authorities. In that case, a statute required that a commissioner of juries, for the city and county of Hew York, should be appointed by the supervisors, the judges of the superior court, and the judges of the court of common pleas, without saying what should constitute a quorum, or whether' a majority either of the whole body, or of the component parts, should be sufficient to appoint; it was held that after due notice to all the persons mentioned, a majority of the whole number constituted a quorum, and were competent to decide any matter on which the whole body had authority to act.

In the case referred to (supra) it was also decided that two days’ notice, where no length of notice is prescribed by the statute, for all persons residing in the city, would be deemed sufficient notice.

In the statute prescribing the manner of appointment of these clerks, it is declared that it shall not be lawful for the aldermen to proceed to make the appointments in the absence of the mayor, unless, after a notice to him of eight days, of the time and place of meeting. It seems to us that this is a clear legislative declaration, that notice was to be given to all who legally composed the convention, before those who did attend were authorized to proceed, in their absence, to act.

In the case of The People v. Whiteside, (23 Wend. 9; S. C. 26 id. 634,) a notice of a joint meeting of the supervisors and judges of the county of Chautauque, for the purpose of making appointments, given and served on the judges, between the hours of two and four o’clock, for a meeting the same day, at five o’clock, was held sufficient; all the judges being in the same village where the meeting was to be held. *314In this case notice of the meeting was given to all the judges, and it seems to have been assumed that notice to all was necessary to constitute a legal meeting.

In the case of Grindley v. Barker, (cited supra,) Eyre Ch. J., says: “ The cases of corporations go further; there it is not necessary that the whole number should meet; it is enough if notice be given, and a majority or a lesser number, according as the charter may be, may meet, and when they have met they become just as competent to decide as if the whole had met.”

To the same effect is the case of the Attorney General v. Davy, (2 Atk. 212.) There, by charted, three of twelve persons named were authorized to choose a chaplain, and upon a vacancy, two of the three chose the chaplain. Lord Hardwicke said it cannot be disputed that whenever a certain number are incorporated, a major part of them may do any corporate act. So if all are summoned and a part appear, a major part of those that appear may do a corporate act, though nothing be mentioned in the charter, of the major part; and he was of the opinion that the three were a corporation for the purpose for which they were appointed, and that the major part of them might do any corporate act, and thus make the appointment. “At common law, independent of any specific constitution, when the power of acting is intrusted to any specific number of persons, whether definite or indefinite, any number of the whole body is sufficient to form a legal assembly, if all be properly summoned to attend.” (1 Kyd on Corp. p. 401.)

The principle deducible from all the cases, we think, is, that where a power is to be exercised, like the present, a majority of the whole number may proceed to act, and their action is legal, provided all the members composing the body are summoned to attend, or have notice of the time and place of meeting. That the right to have such notice is one which the majority cannot take away from the minority; that all comprising the body are entitled to reasonable notice of the *315time and place of the meeting, and if all are summoned or have notice, a majority attending may proceed to act, and the majority of that quorum will bind the whole body.

In the present case, five members of the body were not summoned to attend the meeting, and had no notice thereof. We think this omission is fatal to the legality of the meeting, and consequently the plaintiffs Loew and McConnell were not duly and legally appointed clerks of the district courts, and that there must be judgment for the defendants, with costs, in each case.

Clerks, J., concurred.