(concurring). I concur in the holding that the Treasurer could not be left off the board while the Governor and Auditor were made members thereof. Practically speaking, officers would be expected to approve a contract which they had let. So that, if the Governor and Auditor were made members of the board to let the contract, the Treasurer should also have been made a member, otherwise the two officers who assist in letting the contract might become committed to its approval before the matter was taken up with the Treasurer, as the Constitution evidently contemplated.
But I perceive no reason why the three State officers might not be authorized to let the contract as well as to approve it if they were all three put on the board. Whatever might be said of the policy of legislation of that character, I see no constitutional objection to it.
The Constitution contains no inhibition to that effect the only provision being that “no member or officer of any department of the government shall in any manner be interested in such contracts, and all such contracts shall be subject to the approval .of the Governor, Auditor and Treasurer.”
The approval of the contract by these officers was the thing desired, and that would be obtained if they were made members of the board which lets the contract in the first instance. I think the case of Woodruff v. Berry, 40 Ark. 251, accords with this view.
I do not agree with the majority in the view that these State officers must separately and severally approve the contracts mentioned in this section 15. This is a very comprehensive section, and includes many matters of detail, as it covers all contracts for stationery, printing, paper, fuel, whether for the use of the General Assembly or the other departments of government, and the printing, binding and disbursing of the laws, journals, department reports, and all other printing and binding, and the repairing and furnishing of the halls and rooms used for the meeting of the General Assembly and its committees. The very extent and variety of the duties imposed on the three constitutional officers in regard' to these contracts suggests alike the wisdom and necessity for conference and consultation, if the purpose of the Constitution is to be subserved.
Ordinarily, the purpose of conferring authority upon more than one person to perform an official duty is to secure the benefit of conference and consultation, and there is nothing in the language quoted to indicate a contrary intention here. Certainly the necessity and advantage of such action is as apparent here as in other cases where important contracts are to be made or important action taken.
The majority has held that these officers do not act collectively. They may meet together, or not, as they please. Each is given the veto power. The right of the majority to rule is destroyed. An obdurate officer may, by withholding his own approval, coerce the majority or embarrass tbe public administration. A result so full of deplorable possibilities should not be brought about unless the writers of the Constitution have so expressly ordered.
Section 9755, C. & M. Digest, was the law in this State when the Constitution of 1874 was adopted. It reads as follows: “An authority conferred upon three or more persons may be exercised by a majority of them;, and a majority of three or more persons may do any act directed to be performed by them. ’ ’
The Constitution did not repeal all existing laws. It repealed only those which conflicted with its own provisions. Here is a statutory rule of construction which existed when the Constitution was adopted, and it is stlil the law. Is it not fair to assume that if the framers of the Constitution had intended that this statutory rule of construction should not apply to the language.under consideration, they would, in some manner, have indicated that intent? As a matter of fact, the statute quoted was merely declaratory of the common law, as will later appear in this opinion.
The reasoning of the court in the case of School District v. Bennett, 52 Ark. 511, is applicable here. The court there construed the statute under which school directors make contracts for the employment of teachers, and Judge Hemingway, speaking for the court, said: “Is it necessary that a contract, to be binding on the district, should be executed at a board meeting, at which all the directors are present, or of which the one absent had notice ?
“We appreciate the practical importance of this question, but entertain no doubt as to its proper solution, either on reason or authority. The different members of a board, scattered in the pursuit of their several avocations, are not the board. Duties are . cast upon boards composed of a number of persons, in order that they may be discharged with the efficiency and wisdom arising from a multitude of counsel. This purpose can not be realized without a conference between the members of the board with reference to the matters intrusted to them before they take action thereon. After conference, the board will often escape unwise measures, to which each of the members acting separately would have committed themselves either from haste, immature consideration, the demands of private engagement or an unwillingness to shorten the allotted span of life under the entreaties of an importunate agent or teacher.
“The public select each member of the.board of directors, and is entitled to his services; this it can not enjoy, if two members can bind it without receiving or even suffering the counsel of the other. Two could, if they differed with the third, overrule his judgment and act without regarding it; but he might by his knowledge and reason change the bent of their minds, and the opportunity must be given him.
“We conclude that two directors may bind the district by a contract made at a meeting at which the third was present, or of which he had notice; but no contract can be made except at a meeting, and no meeting can be held unless all are present, or unless the absent member had notice.”
In my opinion, the wisdom of conference and consultation on the part of these State officers is no .more certain than is their duty to meet and confer under the authorities. And when they have thus met and considered their duties, the conclusion of the majority should prevail. The reason for this rule is the same now as it was when the rule was established at the common law. This reason, as stated by the Supreme Court of Nebraska in the case of State v. Bemis, 64 N. W. 338, is that the public interest shall not be prejudiced by the caprice or neglect of a single member of a public foody. A substantially similar statement- of the reason for the rule appears in the quotation from Coke on Littleton, which I copy later into this opinion.
In the case of First National Bank of North Bennington v. Town of Mount Tabor (52 Vt. 87), 36 Am. Rep. 734, the Supreme Court of Vermont construed a statute of that State which authorized a town to issue bonds upon the written assignment of a majority of the taxpayers, certified by three specified commissioners. Two of the commissioners signed the certificates, but the third refused to concur. Held, that the certificate was properly certified. The opinion in the case evinces much learning and research. The learned judge who wrote the opinion quotes from Lord Coke (Co. Litt. 181 b) as follows:
* ‘ ‘ Secondly, there is a diversitie between authorities created by the partie for private causes and authoritie created by law for execution of justice. * * * If the sherife upon a capias directed to him make a warrant to foure or three joyntly ¡or severally to arrest the defendant, two of them may arrest him, because it is for the execution of •justice, which is pro bono publico, and therefore shall be more favourably expounded, than when it is onely for private; 'and so hath it beene adjudged. Jura publica ex privato promiscué decidí non debent.’ ”
The opinion then proceeds to say: ‘ ‘ Following and applying this principle, the decisions down through the English reports, though not numerous upon this point, are clear that when an act is to be done by several which is matter of public concern, all must meet and confer, and the majority may then decide.”
The American cases on the subject are very numerous, and appear to have followed the English rule with unbroken unanimity.
The case of Bartley v. Meserve, 36 L. R. A. 746, is one in which the Supreme Court of Nebraska went exhaustively into the subject, as is reflected by the opinion in that case. Norval, J., speaking for the court, said: “The rule is well settled that where authority is committed to three or more persons to perform a public duty or trust, if they all meet for the purpose of executing it. a majority will decide. The authorities all so hold, and the Attorney General has cited no case, nor after diligent search have we been able to find a single one, which conflicts therewith. ’ ’
The writer of this opinion has continued that investigation with some diligence and with equal lack of success in finding a conflicting authority.
In Sedgwick on Statutory and Constitutional Law, page 331, it is said: “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 com-' missioners 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.”
A similar statement of the law is found in sections 105 and 106 of Throop on Public Officers. Likewise, in Lewis’ Sutherland, Statutory Construction, vol. 2 (2 ed.), § 562. See, also, Cooley, Constitutional Limitations (7 ed.), page 893; Mechera, on Public Officers, § 572.
In the note to section 115 of the article on Public Officers, 22 R. C. L., p. 546, a number of annotated cases are cited, which collect a very large number of cases from many courts on the subject.
One of these cases is that of Bartley v. Meserve, supra. There a statute of the State of Nebraska required that bonds under the depository law should run to the people of the State of Nebraska and be approved “by the Governor, Secretary of State and Attorney General.” It was pointed out that the statutedid not constitute those three officers a general board for the approval of bonds of State depository banks, this being done for the purpose of distinguishing the statute from one which had been construed by the Supreme Court of that State in which certain officers had been .expressly constituted a board. After recognizing the distinction between the two statutes, the court said that it did not follow that the case was not controlled by the decision of the court concerning the manner of the discharge of duties by officers who were expressly constituted a board. There is an extensive review of the authorities, and the court said: “The principle deducible from the numerous authorities on the subject is that where three or more persons are intrusted by law with powers of a public character or nature, and, in the execution thereof, all of them are assembled, or have been duly notified of the time and place of meeting, the decision of the majority is binding, whether the statute authorizes a majority to act or is silent. Applying this rule to the facts before us, it is very evident that the approval of the Governor was not essential to the validity^ of the bonds of the depository banks, since he was present with the other two State officers when the bonds were approved.”
If it be said that the Montana cases cited in the majority opinion support the conclusion there announced, then it may also be said that they stand alone. But, with all deference to the majority, I think those cases have been misinterpreted. In the first place, both cases involve a construction of the same contract, as appears from the second opinion. So that, in effect, they constitute one case and are, of course, by the same court. In that State there was a board to let printing contracts, subject to the approval of the Governor and Treasurer. The first case reported was a proceeding to mandamus the Secretary of State to furnish copy for the printing, it being alleged that a contract existed between the printing company, and the printing board whose business it was to let the printing contract. But in neither case was there any showing that either the Governor or Treasurer had approved the printing contract; and the first case was disposed of on the ground that there was no contract until these officers had approved the contract.
The second case, instead of being brought against the Secretary of State to compel him to furnish copy for the printing, was brought against the Governor and the Treasurer bo compel them to approve the contract, neither of whom had doné so. The insistence was “that the provision of the Constitution, swpra, requiring approval by the Governor and Treasurer, and of the statute passed in pursuance of the Constitution, imposes a mere ministerial duty upon those officers, and that their refusal to approve the contract is capricious and arbitrary and therefore subject to review by this court.” The point at issue was the extent of the jurisdiction of the courts by mandamus to control action of the executive departments of the government. There was a learned discussion of that subject, which concluded with the statement that the action of . a State executive may be controlled in a purely ministerial act which does not involve executive judgment and discretion, but not in one which does require such discretion.
The court then proceeded to discuss the question whether the approval of the contract was ministerial only, and, as opposing the view that it was, states the opportunities of these two officers to pass on the questions involved with advantages to the State and to the public, by virtue of the information obtained in their respective offices. The opinion does not state how they shall discharge their duties. The statement upon that subject is: “ The Constitution does not define the extent to which they must go in the investigation of the action of the board, nor does it require that they must act together or state any reason for their action. ’ ’
But, aside from all this, the Montana cases can not be authority on the question here discussed, for the reason that only two officers constitute the board in that State to approve public contracts, and there could be no action but by both members. If both agree at all, the agreement is unanimous. This is a mere matter of arithmetic.
It may be said in passing that the statute construed in the Montana cases made the Governor a member of the board which let the contract, and the statute was not held unconstitutional on that account, although it was referred to as unfortunate, for the reason that “it put him (the Governor) in a position where he can refuse to approve the action of a majority of the hoard of which he is a party and thus put his veto upon proceedings in which he takes part. Nevertheless, his duty as a member of this board in relation to these contracts is statutory, while his duty in approving or disapproving the action of the board is constitutional; and we are of the opinion that under the provision of the Constitution it was designed that he and the Treasurer should do more than approve, in a ministerial way, the action of the board in letting the contract. ’ ’
Believing that the decision of the majority on the subjects discussed in this opinion is highly unfortunate as a matter of policy, unsound in principle, and contrary to all of the authorities on the subject, I dissent from the holding that no conference on the part of these officers was contemplated and that three separate and several vetoes may be exercised and also from the holding that there are constitutional objections to making these officers members of a board to let the contracts.
McCulloch, C. J., concurs in the views here expressed.