Downing v. Rugar — 21 Wend. 178

Majority

p. 178

Downing vs. Rugar.

Headnote

iii the exercise of a public as well as private authority, whether it be ministerial at judicial, all the persons to whom it is committed must confer and act together, unless there be a provision that a less number may proceed. Where the authority is public, and the number be such as to admit of a majority, such majority will bind the minority after all have duly met' and conferred.

Where the authority is conferred upon two, nothing can he done without the consent of both ; yet where the authority is public, to prevent a failure of justice or injury to the public, one may act without the other: as if one be dead, or interested, or absent. Upon this principle, one of two overseers of the poor is authorized to institute and carry on proceedings for the seizure of the property of one who has absconded, leaving his wife or child chargeable to-the town. At all events, where only one overseer acts, the consent of the other will be presumed, upon the presumption in favor of the performance of official duty, that he had been conferred with and consulted as to the proceedings to be had.

So strong is the presumption in favor of the performance of official duty, that it always prevails, unless it be shown to be otherwise by direct and positive proof, coming from the mouths of witnesses whose relation to the transaction enables them to put a direct negative upon the presumption: thus in this case it was held, that the- presumption of consent could he rebutted-only by the-testimony of the other overseer.

It seems that if. the inhabitants of a town at their annual town meeting, were to elect but one instead of two overseers of the poor, that the one elected would have no authority to act for the want of a colleague ; but that it' would be otherwise if two were elected, and one should die or become disqualified.

On an application for a warrant against a person said to have absconded,leaving liis wife or children chargeable to the public, the wife of such person is not a competent witness to prove the fact; hut if a warrant be granted upon her testimony, the proceeding is not void, it is voidable only, and a protection to all persons acting under its authority, although actors in the obtaining the warrant.

This was an action of trover, tried at the Yates circuit, in June, 18.38, before the Hon. Daniel Moseley, one of the circuit judges.

p. 179

The suit was brought for the taking of a horse. The defendant justified the taking as an overseer of the poor, by virtue of a warrant issued by two justices, on a complaint made to them by the overseers of the poor of the town of Potter, in the county of Yates, that the plaintiff had absconded, leaving his wife and child chargeable or likely to become chargeable to the public for support. The warrant, issued 15th January, 1838, after reciting the complaint, authorized the overseers of the poor of the town of Potter to seize and take the goods and chattels, &c., of the plaintiff, make an inventory thereof, and return the same with their proceedings in the matter to the next court of general sessions. By virtue of this process, the defendant seized the horse in question, together with,, other property, made an inventory, returned the warrant, &c., and the court of general sessions, by rule, confijrfned the proceedings. On the part of the plaintiff, it was known that the only witness sworn in support of the complaint made to the magistrates, was the wife of the plaintiff; and that the application for the warrant and all the other proceedings in the matter, were had by the defendant alone, no other overseer of the poor uniting with.liim in the matter: one of the magistrates, however, stated "that he did not know whether there was any other overseer of the poor of the town of Potter, at the period of those proceedings, besides the defendant. On showing these facts, the plaintiff insisted that the evidence offered by the defendant should be excluded from the consideration of the jury. The judge ruled that the evidence was proper to be submitted to the jury. The plaintiff then proved a resolution of the board of supervisors of the county of Yates, passed in 1831, abolishing the distinction between town and county poor ; and that since that period the poor of the county had been supported under the management and direction of county superintendents of the pear ; but failed to prove that the determination of the supervisors had been filed with the county clerk, 1 R. S. 629, » 28, 2d ed. The plaintiff renewed his objections to the evidence produced by the defendant, contending that it was now apparent that the defendant had failed to make out a justifica-

p. 180

tian ; that the distinction between town and county poor having been abolished, the duties of overseers of the poor of the several towns 'in cases of this kind were transferred to the county superintendents, and that therefore the whole proceedings on the part of the defendant were coram non judice. This objection was again overruled by the judge, who amongst other things charged the jury that he was inclined to the opinion that the defendant was justified by the warrant; and if, from the evidence given on the trial, they were not satisfied that the board of supervisors of the county had abolished the distinction between town and county poor, they were authorized to find that the overseers of the poor still retained and had jurisdiction of the subject matter of the complaint upon which "the warrant had issued. ’The jury found for the defendants The plaintiff asks for a new trial. ,

S. Stevens, for the plaintiff.

The distinction between ioxon and coxmty poor, was abolished' in the county of Yates,' in 1831, and the duties formerly incumbent upon overseex-s of the poor in cases of this, kind, devolved upon the superintendents of the poor, 1 R. S. 624, 625, § 8, 13, and who have ever since discharged those duties. The adoption of this new mode of conducting matters relating to the poor, depends upon the determination of the supervisors, and not Upon the fact of the evidence of their determination being filed in the county clerk’s office ; the statute as to the filing of the certificate is merely directory, and the omission to file it cannot have the effect to defeat the determination of the supervisors. If this be so,' then the overseers of the poor had no authority to act in the matter. But if they had authority, both the overseers of the poor of the town should have united in the proceedings had against the plaintiff. The statute requires that there shall be two overseers of the poor elected in each town, and the power to act in cases of this kind is given to the overseers, that is, to both, and not to one of them. Where a power is given to two persons, as there can be no majority, both must cqiicur in any proceedings had under the power conferred. ' Here it was shown

p. 181

that the defendant acted alone, and that the other overseer did not unite in what he did. Again : The defendant is not protected by the warrant, as it issued upon insufficient evidence. The wife of the plaintiff was not a competent witness against her husband, and the defendant cannot shelter himself under the warrant, as he was an actor in the whole transaction, and thus fully aware of the illegality of the proceedings. 6 Cowen, 234. 3 id. 206. 9 Johns. R. 75.

D. B. Prosser, for the defendant.

The plaintiff failed to -prove that the distinction between town and county poor was abolished in Yates; the question was submitted to the jury upon the evidence before them, and their verdict is conclusive. Admitting that there were two overseers of the poor of the town of Potter, at the time when those proceedings were had, it was not necessary that both should be actors. The act to be done was merely ministerial, and could as well be performed by one as both. 3 T. R. 38. Id. 3S0. The defendant is protected by the warrant of the magistrates who acted fidicially, and if they erred in taking the testimony of the plaintiff’s wife, their proceedings are not void ; they are voidable merely, and are a full protection to the defendant, although an actor in the. transaction. 10 Johns. R. 167. 11 id. 150, 114. 17 id. 145. 2 Strange, 710. 5 Wendell, 170. 6 id. 597. 16 id. 514 As to the right to take the testimony of the plaintiff’s wife, the counsel cited 18 Wendell, 637, 10 Yesey, 56.

By the Court,

The jury found, under the ■charge of the judge, that the distinction between town and comity poor had not been abolished in the county of Yates, and the only questions presented by this case are, 1. Whether the proceeding was void for want of action by two overseers - and if not, then -2. Whether it was void because the plaintiff’s wife was the sole witness before the justices.

1. The statute requires each town to elect two overseers. .1 R. S. 332, § 4. I therefore think, till the contrary be shown, we must intend there were two in the town of Potter. Besides, it is quite doubtful whether, if there be not

p. 182

two, any act whatever can be done as overseer by the other. Should the town omit to choose the requisite number, they would not pursue the statute'authority ; though if one should die or be disqualified, it would seem that the of her might then act alona. 14 Yin: Abr. Joint and Several, (B), pi. 1. 45 Ass. pi. 3. Jenk. 40, case 76. Though otherwise of judicial officers. Auditor Curie’s case, 11 Rep. 2 . Jenk. 40, case 76.

The statute under which the defendant proceeded, 1 R. S. 624, § 8 to 10, provides that when a father, &c. shall abscond, leaving his wife or children chargeable, to any town, or likely to become so, the overseers may apply to any two justices, who, upon due proof, may issue their warrant authorizing the overseers to seize his goods. By virtue of this warrant the overseers may seize the goods and be vested thereby with all the owner’s right. The overseers shall makS an inventory, and return it, together with their proceedings to the next general sessions, there to be filed; and the court may confirm the warrant and seizure, or discharge the same. The statute in terms confers a joint authority; and, containing no express provision that each of the overseers may proceed separately, it is objected that all is void here for want ,of jurisdiction, because it did not.appear affirmatively that both of them actually joined in the complaint and subsequent •proceedings. The rule seems to be well established, that in the exercise of a public as well as private authority, whether it be ministerial or judicial, all the persons to whom it is .committed must confer and act together., -unless there be a provision that a less number may proceed. Where the authority is public, and the number is such as to admit of a majority, that will bind the minority, after all have duly met and conferred. Green v. Miller, 6 Johns. R. 39, 41. Grindley v. Barker, 1 Bos. & Pull. 236. 2 R. S. 458, § 27, 2d ed. 3 id. 780, note, § 44, referring to 6 Johns. R, 39. Rex v. Beeston, 3 T. R. 592, 594. It follows, that where there are only two, nothing can be done without the consent of both. And this has been held as a general rule where a county has two coroners or sheriffs. 6 Vin. Abr. Coroner,

p. 183

(H), pi. 14 Vin. ut supra. Rex v. Warrington, 1 Salk. 152. Yet, there are authorities which hold clearly, that to prevent a failure of justice, one may act alone without consulting the other; as if one be dead, or interested, or absent .where it is necessary to make an immediate arrest. All this may be collected from Yiner and Salkeld, before cited, to which may be added Naylor v. Sharpless, 2 Mod. 23 ; and see Auditor Curie’s case, 11 Rep. 2. and Rich v. Player, 2 Show. 286. I should infer, from these authorities, that one overseer alone might at his pleasure make a seizure of the goods.

But admitting that it were necessary they should act jointly throughout,- and that should one act without the assent of the other, all would be void, the warrant here on its-face appears to be regular. It recites the application as being made by both; and it being the duty of the acting overseer not to proceed without obtaining the other’s consent, I think we are bound strongly to presume that such consent was obtained. It cannot be necessary that both should be corporally present. The duty is strictly ministerial, and one may act alone as the agent or deputy of both, with the other’s consent. Ministerial officers may, in general, depute their powers to- one another or to a third person. Tomlins’ Law Diet., Deputy. Can there be a doubt, that overseers of the poor, in prosecuting under the excise law, or otherwise appearing as parties, may make an attorney 1 So of various other municipal officers. This right has never been questioned,- nor that they may delegate all their authority to one of their body to act as attorney. The delegation need not be in writing -f it is good, though merely oral. Gaul v. Groat, 1 Cowen, 113; Tullock v. Cunningham, id. 256. It is very common for such officers and others, acting as commissioners under various statutes, not only to delegate in particular instances, but to agree generally, that one of the board shall act in behalf of the whole in the execution of whatever measure they may resolve on. This is convenient, and it is many times impossible that ministerial duties should be executed without the employment of agents or deputies. The law allows it in respect to such

p. 184

convenience, always holding the officers themselves accountable for the acts of their agents; of this, various instances are put in the Earl of Shrewsbury's case, 9 Rep. 48, 49. It being the duty of the overseers to act jointly, and they having power thus to act by one of their body in the mere execution of their resolves ; and such too being the common course of business, which is convenient and many times absolutely necessary, a very strong intendment arises when one comes to act for all, that he has done his duty by conferring with his companions, and obtaining the requisite power.

There is also another principle on which the assent of the other overseer should be presumed. The case was a fit one for prosecution, and the suit beneficial to the town represented by the overseers. It has been often held, that any of the principles mentioned authorize a presumption that the party charged with a neglect of duty proceeded regularly. This presumption prevails till the contrary be clearly shown. One instance of presumption from official duty, is a constable being sued for making an arrest on execution without first searching for property. He shall be presumed to have made due search, and the plaintiff be put to prove the negative. Barhydt v. Valk, 12 Wendell, 145, 6. The cases are numerous under all the heads of presumption I have mentioned, and too familiar to need citation. It was said by Bayley and Littledale, justices, in Bailey v. Culverwell, 8 Barn. & Cress. 448, that where an act is for the benefit of the party, though it be done by another without any apparent authority, a subsequent assent is sufficient, and shall be presumed. Can there be a doubt of this 1 Suppose one of two overseers of the poor receives money due to the poor fund, who would hesitate to presume that the other would assent to the payment ?

The presumptions of which I have spoken, especially those arising from official duty, are very strong; and that the duty was not performed must be shown by calling those whose relation to the transaction can put a direct negative upon it, unless their absence be accounted for. This was distinctly held in Williams v. The East India Company, 3

p. 185

East, 192, wherein it was sought to charge the company because their officer had neglected to give notice to the plaintiff’s chief mate, that certain combustibles laden by the defendants on board the plaintiff’s ship were of such a character as to endanger its safety. The court presumed that the defendant’s officer had given notice ; and the chief mate being dead, it was held essential to produce the officer himself who delivered the materials—for want of which the plaintiff was nonsuited. Proof by the captain and second mate that they had no notice, was held to be merely circumstantial, and therefore insufficient.

In the case at bar, if the absent overseer had not given his consent and authority to proceed, he alone could say so; and 1 think it due to the defendant and the general safety of this kind of officers to presume they proceeded regularly, till the best sources of information are exhausted. The other overseer was a competent witness ; and in his absence it was right at the circuit to regard the defendant as properly acting for both. Had the other been dead or his absence otherwise accounted for, the circumstances might have been sufficient to negative the proper authority till it was shown affirmatively. As the case stands, nothing was .shown which is necessarily inconsistent with the assent of the other overseer. The proof establishes merely that he did not appear in the matter personally.

The process then must be taken to have been regularly sued out so far as authority was concerned. The seizure of the plaintiff’s goods was consequently lawful, unless the proceeding be otherwise impeachable; and though the return to the general sessions should regularly have been in the name of both overseers, the omission is but an informality, which, after jurisdiction properly acquired, cannot be objected, in this collateral action. It was but a clerical error, which might have been amended on motion so as to speak according to the legal effect of the seizure.

Mext it is objected that the wife was an incompetent witness ; and that the warrant was taken out on her testimony alone, there was a want of jurisdiction. But according to Van Steenbergh v. Kortz, 10 Johns. R. 167, the admission

p. 186

of improper proof is a mere error of the magistrate; and cannot be objected as rendering the proceeding void.

New trial denied^.