I dissent.
The controversy here present arises solely from the fact that section 758 of the Penal Code, adding new powers to *244the grand jury, which it did not possess under the common law, fails to prescribe the number of grand jurors who must concur in order to return a valid accusation. It merely provides that “an accusation . . . may be presented by the grand jury of the county. ...” In view of the complete legislative silence on the question, why should we not turn to other recognized sources from which we gather knowledge sufficient to enable us to appraise the new situation imposed on the grand jury by the enactment of the-section? Legislative enactment and judicial interpretation are not wanting for this purpose. The section (758) of the Penal Code based on the Criminal Practice Act (Stats. 1851, p. 219) was incorporated in the code in 1872. At the same time, there was enacted and incorporated in the same code section 7, defining certain terms in the senses in which they were to be used in the code, and wherein it was declared that
“The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context:
“ . . . 17. Words giving .a joint authority to three or more public officers or other persons, are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority.” [Italics added.] Petitioner’s contention that grand jurors are not “public officers” within the meaning of this section disregards the phrase “or other persons” immediately following. I do not find any merit in petitioner’s contention that grand jurors do not exercise a “joint” authority, so as to give the section application to this proceeding. In reply thereto respondent urges that when the section was made a part of the Penal Code in 1872 there were only two groups—the grand jury and the State Board of Prison Directors—given “joint”, or other, authority to which the section might possibly apply. I do not think the words “joint authority” appearing in the section should be construed in the limited manner urged by petitioner. Undoubtedly what was meant was to permit a majority to act on behalf of any group having authority to act as a body. This being so, and in the absence of express statutory provision to the contrary, I am of the view that eleven grand jurors, constituting a majority of the panel of nineteen, may validly return an accusation pursuant to section 758, supra.
*245This reasoning finds expression, indirectly at least, in the case of Coffey v. Superior Court, 2 Cal. App. 453, 459 [83 Pac. 580], wherein an accusation under section 758, supra, concurred in by fourteen members of the grand jury, was assailed as being invalid. The issue presented in that proceeding for a writ of prohibition was whether a lesser number than the full panel of the grand jury could return such an accusation. After declaring that it was not essential to the validity of an accusation that all members of the grand jury concur therein, the court said, so far as pertinent here, that “There is a further reason which is urged in support of the accusation. Section 7, subdivision 17 of the Penal Code reads: ‘Words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority. ’ It is the rule generally that a private trust or agency must be executed by all, as in the case of arbitrators chosen to settle a private controversy, but Mr. Mechem also says, in his work on Public Offices and Officers, section 572: ‘ Where, however, a trust or agency is created by law, or is public in its nature and requires the exercise of deliberation, discretion or judgment, whether it be judicial or quasi-judicial in its character, the rule is otherwise, and while all of the trustees, agents or officers, except where the law makes a less number a quorum, must be present to deliberate, or, what is the same thing, must be duly notified and have an opportunity to be present, yet, except where the law clearly requires the joint action of them all, it is well settled that a majority of them, where the number is such as to admit of a majority, if present, may act and that their act will be deemed the act of the body. ’
“The supreme court by the constitution of 1849 was composed of a chief justice and two associate justices, and it was provided that any two should constitute a quorum; but there was no provision as to the number necessary to pronounce a judgment, as was done by the amendments of 1862, when the number was increased to five, and by the constitution of 1879. Two justices, however, pronounced judgments, being a majority of the three. See discussions of the power of the court by a majority to pronounce judgments in certain matters in Estate of Jessup, 81 Cal. 408, at page 459 [22 Pac. 1028, 6 L. R. A. 594], There have been many boards and *246commissions created by statute whose functions were judicial or quasi judicial. These bodies have uniformly acted through the vote of a majority. . The board of railroad commissioners is a notable example. The constitution created the board to be composed of three [now five] members. Its powers are judicial as well as administrative and executive. A majority has many times, in most important matters, such as determining rates to be charged for freight and the like, expressed the will of the board. While this view of the law would seem to safely lead us to the conclusion that a majority of the grand jury may present an accusation under the provisions of Penal Code, section 758 et seq., and hence the present accusation was legally presented, we prefer to place our decision on the ground first above stated, and that upon the concurrence of twelve or more of the grand jury legally formed a valid accusation may be presented.”
The Coffey case, supra, 456, also states that “The common law required that twenty-four should be summoned to attend on the grand jury; but not more than twenty-three were sworn, because of the inconvenience which might arise in case twelve, who were sufficient to find a true bill, were opposed by the other twelve, who should be against finding. (State v. Davis, 24 N. C. 153 . . . ; State v. Miller, 3 Ala. 343, 344; State v. Brainerd, 56 Vt. 532 [48 Am. Rep. 818] ; State v. Ostrander, 18 Iowa, 435; 4 Blackstone’s Commentaries, 302; 17 Am. & Eng. Ency. of Law, p. 1290.) ” Identical language is found in People v. Hunter, 54 Cal. 65, 66. This language tends to indicate that at common law the grand jury was a majority-controlled body. We had occasion to so declare in People v. Thurston, 5 Cal. 69, wherein it is declared: “The appellant was indicted by a grand jury, composed of twenty-four persons. This was erroneous. The statute provides that twenty-four shall be summoned, but limits the number of those competent to act to twenty-three. This was the rule at common law; twenty-three only being taken of the twenty-four summoned, so that twelve might constitute a majority. See 4 Blackstone, 302. If more than twenty-three persons can hold an inquest of the county, there would be no limit to the number, and a party might be indicted by less than a majority of the jury, our statute having provided that twelve grand jurors may present an indictment.” The portion of Blackstone referred to in the above quotation reads *247as follows: “As many as appear upon this panel are sworn upon the grand jury; to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority.”
Here, admittedly, a majority of the grand jurors (eleven of the nineteen) concurred in returning the accusation. I do not deem it necessary, therefore, to decide petitioner’s purely hypothetical case that this conclusion will ultimately permit six grand jurors, representing a majority of a quorum, to return an accusation. That case is not now before the court.
It would therefore seem to follow that petitioner has not been deprived of any of his constitutional rights.
The applications should be denied and the alternative writ discharged.
Rehearing denied. Waste, C. J., voted for a rehearing.