Van Steenbergh v. Bigelow

By the Court, Savage, Ch. J.

By the third section of the act relative to turnpike companies, (1 R. L. 230,) all turnpike roads are to be laid out by commissioners to be appointed by *46 the governor. The president and directors of the company may agree with the owners of the land over which the road is laid, as to compensation for the same. If they cannot agree, application must be made to one of the judges of the court of common pleas of the county where such land is situated, whose duty it is to appoint three appraisers, being freeholders of the county. The act then proceeds: “ And it shall be the duty of the said president and directors to give notice to the said appraisers of their appointment, who, or any two of them, shall thereupon name a day for meeting on the land, and perform the duties required by this act,” &c. The president and directors are also to give notice to the owner of the time and place of the meeting of the appraisers. “ And further, each of the said appraisers shall, before he proceeds to execute the trusts reposed in him by this act, take and subscribe an oath or affirmation in writing,” &c. The appraisers shall make an appraisal, and upon payment of the amount, the company may enter upon the lands.

The judge was certainly right in* rejecting the proof that one of the appraisers was not a freeholder. Whether the appraisers were freeholders or not, was not enquirable into collaterally. Their appointment had been made by an officer whose duty it was to have appointed freeholders and no other. If he erred in that particular, the appointment might have been examined in this court on certiorari, and if illegally made, would have been set aside. The statute, (1 R. L. 155,) which, in certain actions, allows the whole matter to be given in evidence on general pleadings, cannot be construed to mean that any matter whatsoever may be given in evidence. The object of the statute was only to relieve parties from intricate special pleading, and not to allow matter to be given in evidence, which, if specially pleaded, would not be a defence.

The whole defence rests upon the construction to be given to the third section of the act relative to turnpike companies. The general principle is too well established to be controverted, that where three or more persons are appointed to do any *47 particular act, if it be a matter of private concern, and no provision is made that a less number than the whole shall act conclusively, then all must join; but in matters of public concern, a majority have power to decide, provided all act upon the matter. Thus commissioners of highways must all unite in consultation, but a majority may decide. So, a majority of j referees may make a report, provided all have heard the cause. But in neither of these cases have two a right to act alone, without the third, though they may ovrrule him. The same rule has been applied to canal appraisers, and is applicable to this case, unless the statute has excluded it. The statute directs that the president and directors shall give notice to the appraisers of their appointment, who or any two of them, shall thereupon name a day for meeting on the land and perform the duties required of them. Had the words “ or any two [of them,” been omitted, it would have been necessary to have shewn that all the appraisers met and consulted together ; but two of them in that case might have made a valid appraisement, although the third had expressly dissented. (7 Cowen, 526.) The legislature, I presume intended by the phraseology “ or any two of them,” to confer upon the majority the powers which, in ordinary cases, would have devolved upon the whole, without those words. This seems to me the true construction of the act. Any two of the appraisers most clearly may name a day of me eting on the land; and, as I read the statute, any two of them shallperform the duties required of them by this act.

The inquisition made by the two appraisers must be taken as conclusive, certainly so far as it states their own proceedings. It states the appointment by the judge, which was not necessary to have been stated. It does not state a notice to the apprisers, but it states that the appraisers, on the day of their appointment, named a day for meeting on the land. Notice, therefore, may well be presumed, particularly as the object of the notice was accomplished by bringing together the appraisers, and procuring the designation of a day for meeting upon the land. The inquisition speaks of the appraisers *48 throughout as if all were present; though it appears that but two £00]( oay1 reqUire¿ before proceeding to execute the trust. It seems to me that two had authority expressly given ^lem by the act to perform the duties designated.

By the inquisition, the proceedings appear to have been regular; but if they were not, so long as a valid appraisement appears, we will not enquire collaterally into the proceedings of the appraisers. Enough is shewn to give them jurisdiction. The inquisition is on file, and a matter of record. If incorrect, it might have been set aside on certiorari.

I am of opinion, therefore, that the motion to set aside the nonsuit should be denied.