Majority
p. 500Orvis against Thompson qui tam, &c. By the first section of the act, the supervisor of the town, ánd two justices^ are declared commissioners of the excise ; or if there be not two justices of the town, or they’be absent, the supervisor may associate with -him-any other- justices of the county for that purpose. The supervisor is a mere member of the board of commissioners, and has no authority, or negative, beyond the other members ; a license signed by a majority of the commissioners present; must be valid. The third section of the act requires three commissioners to be present, of whom the supervisor must always be one, and ,no license can be granted until they; or a majority of them, are- satisfied that the person applying for a license is of good moral character, and of competent abilities to be-a keeper of a tavern, &c. The license is directed to be under their-respective hands and
Headnote
The supervisor may associate more than two justices with him as commissioners of excise, and the act of a majority present, is valid. If three, or a majority present, sign tile license to keep a tavern, &c. it is suffi¿lent, though the supervisor refuse, it is not tha^he^hould sign the license,FROM the return to the certiorari in this cause, it appeared that the plaintiff in error was prosecuted by the defendant in error, qui'tdm. &c.‘ before it justice of the peace, to recover the penalty of 25 dollars for selling strong li-quors by retail, without having a license according to the' act. (Laws of N. T, Vol. 1. p. 484= § 1. 3.) The defen-' dant below had been appointed ahd licensed as a tavern-keeper, at a meeting of the supervisor and eight justices and commissioners of excise, by a majority óf them present,' 'and lus"license was signed1 by five oí - the nistices, but not , by the supervisor who was present, and was requested to ^’S11 Judgment was-given for the plaintiff below against "the present plaintiff in'error. - * . ‘
Gold, for the plaintiff in error.
Platt, contra.
p. 501seals, and"their proceedings or resolves are to be reduced to writing, and severally subscribed, &c. Though it may not, be requisite that all should consent to the license, yet it must be subscribed by all. This being a grant of authority, it must be construed strictly. The supervisor has a negative on the two justices, who have a negative on him. It may have been the duty of the supervisor to dissent, yet without his signature the license is void. If the supervisor and two of the justices had sighed the license, it would have been valid, though not by a majority of those present.— 3. Again, there is no resolution that the person was of good moral character, nor that any tavern was necessary, &c> which things are required by the act. 3. The board was pot legally constituted. The act confides the power to three. If they assemble and deliberate with a greater number, they cease to be a legal board. Mixed with so many persons clothed with no such authority, they cannot act nor exercise their legitimate functions. The law intended only that there should be three commissioners at least. A greater number does not invalidate the acts of the board. The supervisor did not select any two present. The essential point is the moral character of the person to be licensed. It would be absurd, that two should certify to that fact, and yet three be required to sign the license. The act merely directs the, mode of granting the license, that is, it must be signed and sealed[1] Where a power of a public nature is given to persons who are to be assembled to exercise it, the opinion of the majority must always govern. This is a general principle, recognized by various authorities,* and it is founded in convenience and justice. A contrary doctrine would be productive of very great embarrassment and inconvenience.
Gold, in reply.
The license produced by the defendant below, was valid. The act of a majority of the commissioners of excise, was sufficient, and it was so considered in the case of Palmer, qui tam. &c. v. Downey, decided in this cpurt, in October term, 1801. The supervisor may, in his "discretion, associate more than two justices with him, as
p. 502
commissioners of excise. The number is not limited by the act to three and no more. The consent of the supervisor is not indispen sable If a majority of the commissioners present sign the license, it is sufficient. The judgment below, must be reversed?
Judgment reversed.