#### THE STATE *vs.*ELISHA KING et al.

Dec. 1839

Where a public act is to be done by commissioners for that purpose appointed, and the commissioners, or so many of them as by the terms of their appointment are required to act, do meet and confer, and a determination is made upon the subject by a majority of them, the majority will conclude the minority, and their act will be the act of the whole. And after a decision once made, the commissioners have nothing further to do. They *are functus*officio, and cannot afterwards meet to annul or vary the act which they have done.

Where certain commissioners appointed to act on behalf of the public, in ■making a purchase, or accepting a donation of land, accept a proposition for a gift of a piece of land, to be laid off in either of two ways at the option ot the commissioners, and a part of the commissioners are authorised by the whole to lay off the land without specifying in ■which way, the act of a minority in laying off the land, will not be valid withoutthe assent of the majority; though, if the proposition had not been in the alternative, the act of laying off the land, might have been performed by any one or more of the commissioners, or-by any agent or attorney — provided that the act was done in conformity to the terms of the proposition.

A proposition to give a certain quantity of land for the use of the public, to be laid off twenty poles on each side of a certain lane, commencing at a designated line and running thence to a particular river, is complied with by a donation of land laid off in the form of a parallelogram with the lane in the middle, and extending to the river, though it may not have the river for the whole boundary on that side.

Where an act of Assembly, in one section, directs a site to be selected fora town in a newly erected county, and in a subsequent section enacts that the County Court of the county “at its first session” shall appoint commissioners to sell the lots in said town, the first court which sits after the site is selected, and not the first court after the enactment, is the one vested with authority to make the appointment; and if an appointment be made before the selection of the site, it will be premature and revocable at least, if not absolutely void.

At the last session of the General Assembly, an act was passed, by which the southern portion of the county of Buncombe was erected into a separate and distinct county, by ,the name of Henderson. By a supplemental act, and in the 11th section thereof, eleven persons were appointed commissioners, in the words of the act, ‘‘ to select and determine upon a site for a permanent seat of justice in said county, who shall locate the same as near the centre of said county as practicable, taking into consideration both the extent of *522territory and population; and nine of the commissioners hereby appointed, shall have power to act.” It was further enacted in the 11th section as follows: “ seven of the above app0inted commissioners first named, shall have power to purchase or receive by donation, for the use of the county of Henderson, a tract of land, consisting of not less than twenty-five. acres, to be conveyed to the chairman of the County Court, and his successors in office, upon which a town shall be laid off to be called Hendersonville, where the Court House and Jail shall be erected, and where, afte'r the completion of the Court House, the courts of said county shall be held, and the Clerk and Register shall keep their offices.” And the 12th section directs “that the Comity Court oí Hen. derson, at its first session, shall appoint five commissioners to lay off the lots of said town, who, after designating such as shall be retained for public uses, shall expose, after advertisement for thirty days, the residue to sale at public auction upon a credit of 12 and 18 months, and shall take from the purchasers bonds with security, payable to *the*chairman of the County Court and his successors in office.” At the first term of the County Court thereafter, in February, 1839, the court appointed Elisha King, John Davis, Samuel M. Car-sou, John Woodfin and William Dea ver, commissioners to lay off the lots of the town, and to perform the other duties prescribed in the 12th section of the said act. At this time, . the commissioners appointed in the act, had not selected the site for the town, but at length, on the 27th of March, 1839, a meeting was held, at which ten of the said commissioners, including the seven first named, were present, and then the following proceedings were had, as appears from their Journal. “ On motion of Captain Miller, agreed that the following sites be named as the point; one near the road on Gen. Brittains’s and E. King’s land, called Walnut Grove, and one on Shaw’s Creek, near Hugh Johnston’s house. Sundry motions to add a third site being lost, vote called for. Yote as follows: *Road,*Edney, Jones, Allen, Jarrett. Johnston’s, Clayton, Hightower, Wilson, Miller, Young, Deaver. The final decision in Johnston’s lane as follows: he is to give as a donation 20 poles on each side of the lane, commencing at a straight fence west of the house, and continue to the river; *523if more than 25 acres, to be given — if not that much, to be added on each side so as to make that quantity of land; or if the commissioners would prefer having the site north and south, will give 25 acres in that direction, making the lane the centre. Then adjourned *sine die.”*Of the seven first named commissioners, four, Miller, Wilson, Hightower and Clayton, voted with the majority; and three, Edney, Jones and Allen, voted with the minority. Immediately after the final vote, and before the adjournment of the Board, Hugh Johnston, whose proposition had been accepted, was called into the room, and informed thereof. It was then proposed, that the seven first named commissioners, all of them being then present, should proceed forthwith to survey the land, and take a deed therefor; when the three who had voted against the site, suggesting that it was inconvenient for them to attend, requested the other four to do it, and declared that *they*would agree to what should be done by the four. In pursuance of this, these four went to the land, but before the survey began, one of them, Miller, refused to proceed, and went off. After his departure, the remaining three had the land run off in an oblong of 26 acres, forty poles wide, and having its length east and west according to the first or first part of the proposition of Johnson; and took a deed from him to the Chairman of the County Court, which covered the site selected by the Board of Commissioners, and filed the same in the office of the Clerk of the County Court. On the 21st of June, it appears that ten of the persons who had been appointed commissioners in the act of Assembly, met, in order, as the journal states, “to reconsider the vote theretofore taken as to the location of Hendersonville.” After the object of the meeting was declared, two, Hightower and Clayton, desired it to be understood that they did not then consider themselves commissioners. A third, Colonel Chunn, who had not been present at the meeting of the board on the 27th of March, desired to understand whether or not the site for the village *had been located■*— for if it had, he would not act as commissioner; but if not, he would act. And thereupon, on motion of Captain Miller, a vote was taken whether or not the site had been located; and the seven, *524who had made no objection to continuing to act ascommis-sioners. voted that there had been no location. After this, Woodfin and Deaver, two of the five persons appointed by Qounty Court commissioners to lay oif and sell the lots, being desirous of executing this, their supposed duty, required of the other three, the present defendants, to unite with them in doing so; but they refused to comply with this request. An alternative mandamus having issued to the defendants, requiring of them to lay off and sell the said lots, or to shew cause to the contrary; and they having made their returns thereto, the parties *agreed*upon the facts, and thereupon submitted the case to the decision of his honor Judge Pearson, on the last circuit, at Buncombe. He awarded a peremptory mandamus, and from this judgment the defendants appealed to the Supreme Court.

*Clingman and Hoke*for the defendants.

*The Attorney General*for the State.

Gaston, Judge,

after stating the case as above, proceeded as follows: Upon the important question, whether the site for the seat of justice has been definitively fixed by those who were appointed by the Legislature to select it, we entertain the same views which have been expressed by his Honor. Where a public act is to be done by commissioners for that purpose appointed, and the commissioners, or so many of them as by the terms of their appointment are required to act, do meet and confer, and a determination is made upon the subject by a majority of them, the majority will conclude the minority, and their act will be the act of the whole. *Grendley*v. *Barker,*1 Bos. & Pul. 229. *Exparte Rogers, 7*Cowan, 526. The act of Assembly authorised nine of the eleven commissioners to act. More than that number assembled, conferred, and resolved to fix on the site by a vote. The voice of the majority announced upon that vote, was the voice of the body; and accordingly the journal: after recording the vote, pronounces the result of it as the final decision of the board. After this decision, the board had nothing else to do; it was *functus oficio.*It adjourned *sine die*— and those of whom it had been composed had no right to re-assemble and vote that they had not selected a site.

*525' Entertaining this opinion, and presuming that it is very desirable that this county contention could be at once settled v . • , . • • , , , according to the right on the mam question, we íeel reluctance in differing from the Judge on the question whether the seven persons first named in the commission, accepted the donation for the use of the conuty, under the provisions of the 11th section. These persons having been all present when the final decision of the board was taken, and a majority of them having voted in concurrence with that decision, we agree with the Judge in holding that they did resolve to accept Johnston’s proposed donation — and if that donation, as proposed, had been absolute and definite, the mere act of surveying the land and taking the deed, might have been performed by any one or more of the commissioners, or by any agent or attorney — provided that these acts were done in conformity to the terms of the proposal. The Superior Court held, that Johnston’s proposition was absolute and definite — to give 25 acres, 20 poles wide on each side of the lane, commencing at a straight fence west of the house, and continue to the river — accompanied with a declaration that if the commissioners preferred that the length of the proposed donation should lie north and south, instead of east and west, he would vary the proposition accordingly. Now, it is not improbable that it was so understood, and that the commissioners, by their acceptance of it, without intimating a desire to have the land laid off in the form last suggested, meant to take the donation in the form first mentioned. But, after much reflection, we feel ourselves bound to pronounce, that as the terms of acceptance *set forth*the proposition *in exten-*so., as one in the alternative, the right to take the land, either according to the one or to the other form proposed, is reserved to those who are thereafter to act for the county — that is to say, to the seven commissioners. By the acceptance of Johnston’s proposition by the full board, the site was established. It was to be west of his house, adjoining the fence, and on both sides of the lane — but according to our interpretation of that proposition, the board left it to the seven commissioners who were then to act, to *choose*how the land, the subject of the donation, should be run. And if so, without *526enquiring whether all of the persons constituting this second commission, should be actually present when the choice was made, it is clear that three of the seven could not make it. t|iey ]-ia{j reported their selection to their associates in full convention, and these had sanctioned, as they promised they would sanction, what had been *so done, of course the*act would have become that of the whole body. But nothing of this kind appears to have been done.

The mandamus, therefore, which has been ordered, must be superseded. If the controversy is not otherwise adjusted, the seven commissioners are those who have yet to act upon this subject — and if *they*will not, it is upon them the *Court*must be invited to act.

We have considered the objections which were taken to the form of laying off the twenty-six acres, and concur in the opinion expressed below, that these are not well founded. We think the fair interpretation of Johnston’s first proposition is, that the parallelogram should be forty poles wide, comprehending the waggon-road, which was to *be in the*centre as near as might be — and also, that the parallelogram should extend so far as to reach the river — not that the entire western boundary of the land should but on the river.

One question has not been raised by the parties, but our attention has been necessarily called to it by the facts of the case. The County Court appointed commissioners to lay oif and sell the lots in the county town, before any such town existed. In doing this, we are of opinion that the Court misconstrued the act of Assembly. Though the words of the 12th section will admit of the interpretation that this appointment should be made at the first term after the enactment of the statute, to us, it seems clear that the Legislature meant the appointment to be made at the first term after the purchase or donation of the land selected for the town was completed, as directed by the preceding section. We regard, therefore, the appointment made by the County Court as premature — and revocable at least — if not absolutely void.

The judgment of the Superior Court must be reversed.

Per Curiam. Judgment reversed.