The opinion of the court was delivered by .
Haskell, A. J.There are several grounds of appeal presented by the defendant, but the first disposes of the question and is the only one which requires consideration. The objection, is to the jury; that the jury list was not legally prepared. The law on that subject, and at that time, is as follows:
1. There shall be a jury commissioner, “ who, with the county auditor and chairman of the board of county commissioners, shall constitute a board of jury commissioners for the county. Rev. Stat, § 1, 518; Id., § 3, 519. “The board of jury commissioners of each county shall, once in each year, during the month of January, prepare a list,” &c.
From that “list” the grand and petit jurors are drawn. The board-is thus composed of three public officers designated. It-is *344submitted by tbe appellant that all should be present at the preparation of the jury list, but that only two were present in fact; and, secondly, if it should be decided that a majority constitutes a quorum, he submits that one of thp two persons present was not qualified to act, and that, consequently, there was not a majority. On this subject it is said in Sedg. on Stat. and Const. Law 387: “In regard to the number requisite to constitute a quorum of the members of a public body, or the number requisite to do business, it has long been settled that where a statute constitutes a board of commissioners or other officers to decide any matter, as to open books, to receive subscriptions and distribute the stock of a railroad company, but makes no provision that a majority shall constitute a quorum, all must be present to hear and consult, though a majority may then decide.”
The more general rule laid down in Bouvier’s Law Diet., tit. “ Quorum,” is, that where the act is to be done by a definite number of persons, a majority of that number “ is required to constitute a quorum, unless the law expressly directs that another number may make one.” It may be unnecessary to decide whether the whole number is requisite, for that question will not properly arise until it has been determined that a majority was present. "We presume that it will not for a moment be contended that a minority of the whole number could perform the duties of the board, for such a proposition would be absolutely without foundation. We will proceed, therefore, to examine the real question in the case — was there present at the preparation of the jury list a majority of the board of jury commissioners? The facts are that only two were present. “Morgan H. Bryce, jury commissioner for Oconee county, and James M. Hunnicutt, claiming to be chairman of the board of county commissioners for said county.”
It is undisputed that'Morgan H. Bryce was jury commissioner. The epunty commissioners are elected under the constitution for two years. James M. Hunnicutt had held the office as a county commissioner during the period preceding the election in November, 1876. The jury list was prepared January 8th and 9th, 1877. The county commissioners had been regularly elected in November, 1876, and had all executed their official bonds, which had been severally approved and were all recorded on the 18th *345day of December, 1876. It will thus be seen that the new county commissioners had been duly elected and had been qualified nearly a month prior to the time when the jury list was prepared. We know of no authority on the part of James M. Hunnicutt to perform any of the duties of a county commissioner after his successor had been elected, and had qualified by taking the oath of office and filing proper bonds. ' Such are the facts of this case. The conclusion is, that on December 18th, 1876, the newly elected county commissioners had become installed in their offices, and that from that time the former county commissioners were no longer in office. James M. Hunnicutt was, therefore, no longer chairman of the board of county commissioners, and was not qualified to act on the board of jury commissioners. His action,, therefore, being without authority of law, is null and void. The consequence is that there was present but one member of the board of jury commissioners. He had no authority to prepare the jury list, for that is a duty, not of the jury commissioner, but of the board of which he was but a member.. The whole proceeding, therefore, was without authority of law, and the jury drawn from such a list was not a legal jury, and the defendant did not have a proper trial. It makes no difference that the new county commissioners had not met together and elected their chairman before the 8th of January. They could have been compelled to perform that duty, and that was the legal remedy. Whether their failure arose from neglect, accident or mistake, is immaterial. Neither of those nor any other cause would sanction the interference of a person unauthorized by law to assume the powers delegated to others. The remaining questions bear upon matters of evidence and of fact, which could not properly (and, indeed, need not to) be considered by this court. The animus, the cause, and the official or de faeto position of the defendant, were matters for the jury, with proper legal instruction from the judge, and there seem to have been no exceptions to his charge on any of the points.
The judgment is reversed. Motion granted.
New trial granted.
Willakd, C. J., and McIvek, A. J., concurred.