of the board of aldermen (Hine v. City of New Haven, 40 Conn. 478); authorizing harbor masters to station vessels and to assign to each its place (Vanderbilt v. Adams, 7 Cow. [N. Y.] 349); forbidding the occupancy of a place on the street for a stand without the permission of the clerk of Faneuil Hall Market (In re Nightingale 11 Pick. [Mass.] 168); forbidding the keeping of swine without a permit in writing from the board of health (Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860); forbidding the erection of any kind of a building without a permit from the commissioners of the town through their clerk (Commissioners v. Covey, 74 Md. 262 [22 Atl. 266]); forbidding any person from remaining within the limits of the market more than twenty minutes unless permitted so to do by the superintendent or his deputy (Com. v. Brooks, 109 Mass. 355)."

In all of these cases the discretion upon which the right depended was not that of a single individual. It was not in all of the cases cited by plaintiff in error, nor was their principle based on that. It was based on the necessity of the regulation of rights by uniform and general laws-a necessity which is no better observed by a discretion in a board of aldermen or council of a city than in a mayor; and the cases, therefore, are authority against the contention of plaintiff in error. Besides, it is opposed by Davis v. Com., 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71.

Davis was convicted of violating an ordinance of the city of Boston by making a public address on the "Common," without obtaining a permit from the mayor. The conviction was sustained by the Supreme Judicial Court of the commonwealth (162 Mass. 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389), and then brought here for review.

The ordinance was objected to, as that in the case at bar is objected to, because it was "in conflict with the Constitution of the United States and the first section of the fourteenth amendment thereof." The ordinance was sustained.

It follows from these views that the judgment of the Supreme Court of Utah should be, and it is, affirmed.15

15 See, also, Gundling v. Chicago, 176 Ill. 340, 52 N. E. 44, 48 L. R. A. 230 (1898) affirmed 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725 (1900); Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018 (1904); Freund, Police Power, §§ 639-655.

As to judicial control of administrative discretion in continental jurisprudence, see Grünhut's Zeitschrift für Privat- u. Öffentliches Recht, vol. 18, pp. 148-163; Id., vol. 19, pp. 327-411; Laun, Freies Ermessen, 1910.

CHAPTER III

FORM AND PROOF OF OFFICIAL ACTS1

SECTION 11.-ACTION OF OFFICIAL BODIES-THE BODY MUST BE CONVENED

PENNSYLVANIA R. CO. v. MONTGOMERY COUNTY PASS. RY. CO.

(Supreme Court of Pennsylvania, 1895. 167 Pa. 62, 31 Atl. 468, 27 L. R. A. 766, 46 Am. St. Rep. 659.)

WILLIAMS, J.2 * But in this connection another interesting question suggests itself. How is the assent of "the local authorities" to be obtained in any given case, and what is the proper evidence that it has been given? The township books, in the custody of the town clerk, are the records of the township, and should afford evidence of the action taken by the supervisors in all matters of public importance. A paper in the pocket of a contractor or of some officer of a corporation is not the proper evidence of action by the township or the school district. The action needed is not that of the individuals who compose the board, but of the official body. Thus it was held that a contract signed by the members of the school board separately did not bind the district. The best evidence of their official action was their minutes kept by the secretary. Wachob v. School Dist., 8 Phila. 568. For the same reason a contract signed by the president and secretary was held to be invalid. It had not been acted upon by the board when in session. School Dist. v. Padden, 89 Pa. 395.

One supervisor may bind the township by an act that is ministerial in its character. Dull v. Ridgway, 9 Pa. 272; Pottsville Borough v. Norwegian Tp., 14 Pa. 543. Not so, however, when the act is one that requires deliberation and the exercise of judgment. Cooper v. Lampeter Tp., 8 Watts, 125; Union Tp. v. Gibboney, 94 Pa. 534; Som

1As to whether official declaratory acts must be in writing, see Hoke v. Field, 10 Bush (Ky.) 144, 19 Am. Rep. 58 (1873); People v. Murray, 70 N. Y. 521 (1877); Wigmore, on Evidence, § 2427.

As to requirement of personal action of officer, see Chapman v. Inhabitants of Limerick, 56 Me. 390 (1868); Wilcox v. M'Connel, 13 Pet. 498, 512, 10 L. Ed. 264 (1839); Runkle v. U. S., 122 U. S. 543, 7 Sup. Ct. 1141, 30 L. Ed. 1167 (1887).

As to place of action, see Lynde v. Winnebago Co., 16 Wall. 6, 21 L. Ed. 272 (1872).

2 Only a part of the opinion of Williams, J., is printed.

erset Tp. v. Parson, 105 Pa. 360. In such cases the supervisors must be together, and their action must be taken in their official character, and should appear upon the township book kept by the town clerk. If not so taken, it does not bind the township, and has no validity whatever. The supervisors should consider and deliberate upon any application made to them for leave to occupy any of the township roads with a street railway. If they decide to grant the application upon certain terms and conditions, as to the manner and extent of the occupancy permitted and the extent of repairs to be required, these terms. should appear in the record of the meeting, as well as the consent; and a contract that does not rest on such official action, properly taken by the proper officers, is utterly worthless.

* * * 3

SECTION 12.-SAME-ACT OF MAJORITY BINDS BODY

GRINDLEY et al. v. BARKER et al.

(Court of Common Pleas, 1798. 1 Bos. & P. 229.)

EYRE, C. J. The true question in this case lies in a very narrow compass. It is this: What is the operation in law of a judgment of four out of six triers, six being the number constituted to be the triers, and the six being assembled to inquire and try; whether it is to be deemed the finding and judgment of the body, or merely the finding and judgment of the four individuals who concurred? If it is the mere finding of the four who concurred, then this leather is not found insufficient, but if the operation of law on the finding of four, who are the majority of the body, duly assembled, be that their judgment is the judgment of the whole, and therefore the judgment of the triers, then the leather must be taken to have been found insufficient, and the defendants are justified. On the first argument I thought this question

3 "Without formal action by the [state] board [of health], directing a nuisance, or the cause of any special disease or mortality, to be abated and removed, its secretary can neither speak nor act for it in ordering the abatement and removal of the nuisance, and the disregard of an order so given is not indictable." Com. v. Yost, 197 Pa. 171, 46 Atl. 845 (1900).

See Chicago & N. W. R. Co. v. Dey, 35 Fed. 866, 883, 1 L. R. A. 744 (1888). "An official board acts through its secretary. This complainant with others addressed an official communication to the board. He received an answer in the regular way-one signed by the secretary as secretary. Equity and good faith forbid going behind such official notification."

So, under circumstances, acquiescense and assent may be evidenced by inaction or conduct; i. e., informally. Bartlett v. Boston, 182 Mass. 460, 65 N. E. 827 (1903); State v. Rohart, 83 Minn. 257, 86 N. W. 93, 333, 54 L. R. A. 947 (1901).

4 Only a portion of the opinion of Eyre, C. J., is printed.

would turn on two general heads of inquiry: First, what the general rule of law was in the case of bodies of men intrusted with powers of this nature; whether they must all concur, or whether the decision of the majority would bind the whole? Secondly, supposing the latter to be the general rule, whether that general rule is to be controlled by the intent of the legislature as collected from the scope and provisions of this act?

6

With respect to the first question, I think it is now pretty well established that where a number of persons are intrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole. The cases of corporations go further. There it is not necessary that the whole number should meet; it is enough if notice be given; and a majority, or a lesser number, according as the charter may be, may meet, and when they have met they become just as competent to decide as if the whole had met." With a view to this case, those who have met resemble the six triers who have authority to decide: and then a question arises, how they may act when they have met. The case in Atkyns shows the opinion of a great judge, Lord Hardwicke, who was much conversant with this subject in one part of his judicial life, that the majority of persons assembled will conclude the minority, and an act done by them will be the act of the whole body. And that part of the law of corporations applies to this case; that with regard to powers not merely private, which are to be exercised by many persons, provided a sufficient number be assembled, the act of the majority concludes the minority, and becomes the act of the whole body. * * * If that be so, the argument drawn from the word "triers" being used generally, in the thirty-third and fortysixth sections, will not stand much in our way; because the judgment of four triers in this case is the judgment of all, as much as if all had concurred. There is nothing, then, in the general rule of law to prevent this finding from being held good. * *

5 On this point see Throop, Public Officers, § 112. & Attorney General v. Davy, 2 Atk. 212 (1741).

7 The discussion of the second question is omitted.

* 7

"It cannot be disputed that, wherever a certain number are incorporated, a major part of them may do any corporate act; so if all are summoned, and part appear, a major part of those that appear may do a corporate act, though nothing be mentioned in the charter of the major part." Lord Hardwicke, in Attorney General v. Davy, 2 Atk. 212 (1741).

"It is a well-established rule that, in order to constitute a good corporate assembly in the case of a corporation consisting of a definite and an indefinite body, there must be present a majority of that number of which the definite body consists, although, it is not necessary that there should be a majority of the indefinite body." Blacket v. Blizard, 9 Barn. & C. 851, 860 (1829). See, also, Martin v. Lemon, 26 Conn. 192 (1857).

"The rule of the common law, which is now declared by statute, that where an authority is to be exercised by more than one officer they must all concur in its exercise, or all meet and consult and a majority agree to the act, is subject to the necessary qualification that, if one is notified to attend

SECTION 13.-SAME-PRESUMPTION THAT ALL MET OR WERE NOTIFIED

McCOY v. CURTICE.

(Supreme Court of Judicature of New York, 1832. 9 Wend. 17, 24 Am. Dec. 113.)

Trover. Defendant justified as collector under a warrant signed by two trustees of a school district.

* *

*

SUTHERLAND, J.8 The next objection was to the introduction of the warrant, on the ground that it was signed only by two trustees. I am inclined to think the objection was properly overruled Where power is delegated to two or more individuals for a mere private purpose, in no respect affecting the public it is necessary that all should join in the execution of it. Thus arbitrators must all unite in an award. But in matters of a public concern, if all are present, the majority can act, and their acts will be the acts of the whole. 1 Bos. & Pull. 236; 3 T. R. 592; Green v. Miller, 6 Johns. 41, 5 Am. Dec. 184. There can be no doubt that a contract made by all of the trustees and signed by two would be binding, or that two could contract against the will of the third, if he was duly notified or consulted and refused to act. The convenient dispatch of public business requires that it should be so. Ex parte Rogers, 7 Cow. 526, and cases there cited.

The objection here was simply that the warrant was not signed by all the trustees. There is nothing to show, or from which it is to be inferred, that all the trustees did not concur and act in the previous proceedings, and assent to the issuing of the warrant. In Yates v. Russell, 17 Johns. 468, which was a writ of error upon a judgment entered upon the report of referees, in an action not referable under the statute, the report was signed by only two of the referees, and one of the errors relied upon was that it did not appear that all the referees met and heard the parties. It was held by Chancellor Kent, who delivered the opinion in the Court of Errors, that it was to be presumed that all the referees met, as nothing appeared to the contrary; and if they did not, the objection should have been taken in the court below. That principle seems to be applicable to this case and disposes of this point.

Judgment affirmed, with double costs.

and refuses, it is the same as if he had attended and dissented from the act." Horton v. Garrison, 23 Barb. (N. Y.) 176, 179 (1856).

See, also, Williams v. School District, 21 Pick. (Mass.) 75, 82, 32 Am. Dec. 243 (1838), "if there be a quorum."

See Wilson v. Alabama Gt. Southern R. Co., 77 Miss. 714, 28 South. 567, 52 L. R. A. 357, 78 Am. St. Rep. 543 (1900).

8 For first part of opinion, see post, p. 107.