Jackson v. Inhabitants of Hampden , 16 Me. 184 ( 1839 )

The opinion of the Court was drawn up by

Shepley J.

When the master was dismissed from the further charge of the school, the superintending committee consisted of three persons, two of them only acted, the third being absent from town was not notified. There is no provision in the statutes, authorizing a majority to act, as there is authorizing selectmen and assessors in certain cases. Tho powers of this committee in executing the public trust confided to them, must be ascertained by the application of the principles óf the common law. And it seems to be well settled, that when power is entrusted to several for private purposes, they must all join in the execution of it; but when the power is conferred for public purposes, a majority may act.

This bill of exceptions states, that the counsel “ contended, that two of the; committee could not legally act and dismiss the master, but the judge ruled otherwise.” This ruling, in the manner stated, was correct; but it appears in the case, that tho third committeeman was not notified; and tho Judge does not appear to haye particularly noticed that fact, or to have given the proper instructions in relation to it. This would not afford sufficient cause for setting aside the verdict, if it were not of vital importance in tho caso. Although it be true, that in the execution of a public trust, a majority may decide, yet the whole should be notified, that all may have opportunity to attend and take a part in the deliberations and decisions of the body. Grindley v. Barker, 1 B. & P. 236; Baltimore Turnpike, 5 Bin. 481; McReady v. Guardians of the Poor, 9 S. & R. 94; Ex parte Rogers, 7 Cow. 526; Crofoot v. Allen, 2 Wend. 494; Damon v. Granby, 2 Pick. 345. And it is important to require this notice to avoid the possibility, that a majority should intentionally exclude the minority from all participation in their deliberations and proceedings; and thus deprive the public of their services, prevent the exercise of a legal right, and perhaps accomplish purposes, which otherwise never could be accomplished.

In this case, it is not probable, that a notice to the third member of the committee would have been of any practical utility, because it is understood, that he was so situated that he would not have been present if notified. But that does not allow the majority to dispense with the rule requiring notice. They are not, in such cases, constituted the judges, whether the notice would be effectual to secure bis attendance. Nor would it be entirely safe to entrust to them such a power, as it would afford an opportunity to select an occasion, when they might judge that a notice would be ineffectual, and thus, by neglecting to give it, free themselves from the presence of a dissenting minority. And if notice be always required, it may often happen, that those will be able to attend, who were believed to be so situated, that their attendance could not be expected. Nor is there any difficulty in giving the requisite notice in such cases, as one left at the usual place of residence would be sufficient. Such a course may cause some delay and embarrassment in the execution of some of their duties, but whether this will be a greater evil than those alluded to, and that of allowing majorities to act in all cases without the knowledge and assistance of minorities, thus constituting the majority in effect the whole committee, the legislature must judge. The court can only apply the rule of law as it finds it established.

The proceedings of the committee must be regarded as illegal and ineffectual to dismiss the master, because the third member of the committee was not notified.

Exceptions sustained.