The defendants were indicted for a forcible resistance to a part of a patrol in entering a negro house belonging to them, and preventing their searching it. The jury found the following special verdict: "That in the captain's district in which the defendants live there were eight persons appointed patrollers for 1844, by the committee of patrol, and they also find that three of the eight persons so appointed went to the house of the defendants in the night as patrol, and made themselves known as such; that they went to the cook-house or kitchen, a house within the curtilage; that they were met at the door of it by the defendants; that the entrance of said persons was resisted and the entry prevented by threats and weapons used by the defendants; and by reason of such resistance (12) they did not search the house; and they also find that the defendants' negroes slept in said house, and also that the county court of Anson had not made any rules or regulations for the government of the patrol. If in point of law the defendants be guilty, then they so find; but if in point of law not guilty, then they so find."
On this finding the presiding judge was of opinion that the house in question was the subject of search, but as the county court of Anson had made no rules or regulations for the government of the patrols, less than a majority could not act; that the resistance made by the defendants was not criminal, and rendered judgment in their behalf. The State by her solicitor appealed. With the question decided by his Honor in the first part of his judgment we have nothing to do. It does not arise here, and we express no opinion upon it. It is an important point, and leads to very interesting results. We entirely, however, coincide with the presiding judge in the judgment in favor of the defendants. The patrol in every county, when duly appointed, is a public body, invested with powers highly important to the community at large, and to be exercised for the public good. These powers partake of a judicial, or quasi judicial, and executive character. Judicial so far as deciding upon each case of a slave taken up by them; whether the law has been violated by him or not, and adjudging the punishment to be inflicted. Is he off his master's plantation without proper permit or pass? Of this the patrol must judge and decide. If punishment is to be inflicted, they must adjudge, decide, as to the question; five stripes may in some cases be sufficient, while others may demand the full penalty of the law. All these acts (13) upon the part of the patrol require consultation and agreement, and a less number than a majority of the whole cannot act. Not *Page 23 that it requires a majority of the whole to agree in the decision of each case, but it does require that number to constitute (if the expression may be allowed) a court or tribunal for the performance of these duties, and when so constituted a plurality of those present must agree, or no punishment can be legally inflicted. We do not mean that the law requires, on the part of the patrol, any formalities in the discharge of their duties, or that any formal judgment must be pronounced, but that a majority of the patrol properly constituted must sanction each sentence passed. If a minority can act, then each individual patroller may act by himself, and every man's property would be subject to the uncontrolled judgment or passion of a single individual. This cannot have been the scope and meaning of the act. Where powers of a public nature, though not judicial, are conferred on several, it is a general rule that a majority can discharge them, Co. L., 181, b; Grindley v. Barker, 1 Bos. Pul., 229; and it follows as a corollary, that less than a majority cannot, unless the act conferring the power gives to a minority the authority so to do. This principle as applicable to patrols was decided in Richardson v. Saltar,4 N.C. 505. So, also, in the familiar instance of our court of pleas and quarter sessions, but for the clause authorizing three magistrates to hold the courts, a less number than a majority of all the magistrates of the county would be incompetent to hold the terms of the court.
In Tate v. O'Neal, 8 N.C. 418, the judge who tried the cause below decided that it required a majority of the patrol to be present, to enable them to act legally, and the Supreme Court affirmed his judgment. The indictment, as well as the special verdict, shows that a majority of the patrol in this case were not present, and the county court of Anson had passed no rule authorizing a less number to act. (14)
PER CURIAM. Affirmed.