dissenting. The question involved in this case can be understood without stating the facts, further than to say, that upon application for a homestead, three commissioners were appointed, who having reported separately, and not agreeing, their reports were set aside, and three others appointed by the court; all of whom concurred as to the personalty, but only two agreed in a report as to the realty, stating that it could not be divided so as to give the petitioner a homestead of the value of $1,000, without serious detriment to the remainder, valuing the whole at $3,000. The third appraiser or commissioner dissented to the report of the majority as to said real estate. Upon motion his honor, Judge Witherspoon, confirmed the report of the said majority, and ordered “the sheriff to proceed, * * * under the section 1996, General Statutes.”
The appeal of the petitioner denies the legality of a majority report by commissioners to set aparta homestead, and claims that all three should concur, otherwise it is illegal. The creditor also gave notice of appeal, because his honor did not expressly direct the sheriff to sell the real estate, and apply the proceeds, after deducting $1,000 for the homestead of the petitioner. So that the two questions are, first, whether in homestead proceedings the three commissioners appointed to lay off said homestead should agree, or whether the opinion of a majority should control. Second, whether, when a sale is necessary, because the homestead cannot be carved out of the land without detriment, the court upon a confirmation of the report should expressly order and direct said sale, or whether an order directing the sheriff to proceed under the act in such cases provided is sufficient.
In reference to the first question, the cases upon this subject seem to point to a distinction between the agencies appointed to *528discharge the duty involved, to wit, whether they are public or private; holding that in public agents, such as commissioners, and boards organized for the discharge of some public duty, and acting under public authority, a majority may act, or may determine the result, but as to private interests in which the public is in no way connected, and where the appointees derive their authority from private parties, unless there is a stipulation to the contrary, either express or implied, all must concur. In Cooly v. O'Connor (12 Wall., 398), the following language is used by Mr. Associate Justice Strong, which is a condensed statement of the principle, settled in many cases: “It is true,” says the learned justice, “that when an authority is given jointly to several persons, they must generally act jointly, or their acts are. invalid. This is a general rule for private agencies, though it is. not universal in its application. But the rule is otherwise when the authority is of a public nature, as it was in this case. The commissioners were public agents, invested with public authority.. They were created a board to perform a governmental function,, and it is a familiar principle that an authority given to several for public purposes may be executed by a majority of their number.”
This doctrine is sustained in a number of cases cited in a note to the above case. Commonwealth ex rel. Hale v. Canal Comrs., 9 Watts, 471; Jewett v. Alton, 7 N. H., 253; Williams v. School Dist., 21 Pick., 82 ; McCoy v. Curtice, 9 Wend., 19 ; Ex parte Rogers, 7 Cowen, 527. And some of the cases decide that where a board or body of men (such as the vicar and church wardens of a parish) has been charged with administering a private charity, by a testator, it may be executed by a majority, because they were a quasi corporation. 6 T. R., 388. In the matter of the assignment of dower, and in partition cases, where, commissioners are necessary to determine the rights of the parties, a majority can act. This, however, is in accordance with the act of assembly providing the machinery in such cases, and there-, fore is not significant here, as the act in reference to commissioners to set off homesteads has no such provision.
In the absence, then, of power given to a majority, by the act' of assembly authorizing the appointment of commissioners to set., *529off homestead, as in dower and partition cases, the question here must depend upon the general principle as laid down in the cases, supra. Are such commissioners public or private agents ? It is true that they receive their authority to act by the provisions of a public law, a law applicable to all such cases. But are they, when appointed, a public body, or organization in the nature of a board, charged with a public duty ? The weight of the decisions seem to require that they should occupy such a position, in order to authorize a majority to act, that their functions should in some way concern the public, and not simply private litigants. The commissioners to set off homestead are appointed by private individuals in part at least, to wit, the debtor and creditor, and the sheriff, who, it is true, is a public officer, and their duties concern private interests entirely. Two of them being selected, as we have said, by the respective litigants, to represent and to take care of their interests, and the third by the sheriff, who, having no interest, it is supposed would select one perfectly impartial, and thus in the theory of the act, the result being the compound production of these influences, will do justice to all parties. And it may be that on this account the legislature purposely abstained from incorporating in the act on this subject a provision authorizing a majority to do the work assigned said commissioners.
It is urged that for this court to hold that a concurrence of the entire commission is necessary, would be unfortunate, as such a principle would greatly obstruct and impede the enforcement of the rights of creditors where a homestead is claimed. If this be so, it would be a matter for the general assembly to remedy, and not for this court, as our functions are judicial and not legislative. We must declare the law as we find it, leaving alterations and amendments to the legislative department, as in its wisdom may be deemed necessary.
As to the appeal of the creditor. We think the section of the General Statutes, 1996, referred to in the decree of the Circuit Judge, sufficiently specifies the duty of the sheriff in cases like that before us, where the commissioners find that the homestead cannot be set apart in kind without detriment, and therefore it • was unnecessary for him to expressly order a sale and direct the *530application of the proceeds. But it is not necessary to determine this question now, as the judgment below must be reversed on the other ground.
Judgment affirmed.