Pike County v. Rowland , 94 Pa. 238 ( 1880 )

Mr. Justice Trunkey

delivered the opinion of the court,

The Act of 1834 provides that the corporate powers of a county shall be exercised by the commissioners; that two of them shall form a board for the transaction of business, and when convened in pursuance of notice or according to adjournment shall he competent to perform all duties appertaining to the office. To these officers are intrusted the care and management of county business and property. The voice of the inhabitants is not directly heard in the levying of taxes, making of contracts or expenditure of money — their power is only felt at the election of commissioners. The question presented in the fourth and fifth assignments is, may two of the commissioners convene and lawfully transact business requiring deliberation, not according to adjournment, and without notice to or knowledge of the other ? This concerns every citizen of the county, as well as each member of the board.

By law the affairs of the county are administered by three representatives. Absent members, equally with those who are present, are bound by whatever is lawfully done at a regular or stated meeting or any regular adjourned meeting. If the meeting be a special one, the general rule is that notice is necessary, and must be personally served, if practicable, upon every member entitled to be present, so that each one may be afforded an opportunity to participate and vote. Such notice is essential to the power of the board to do any deliberative act which shall bind the corporation. If all have notice, two shall form the board, and their acts bind the absent as if it were a stated or adjourned meeting. Notice may be dispensed with by the presence and consent of all; and if one has quit the municipality, and has no family or house within its limits, notice to him is unnecessary: Dillon on Mun. Oorp., sects. 200, 201, 223, 224. All authorities seem to agree as to the general rule, unless there is a modification in the charter or statute. It applies alike to public and private corporations. Our statute, which declares that a majority shall form a board when duly convened in pursuance of notice or adjournment, is an enactment of the well-settled rule without adding to or taking from.

Jefferson County v. Slagle, 16 P. F. Smith 202, does not support the position that two of the commissioners may meet, without the knowledge of the other, and bind the county by contract. This point was not raised nor discussed in the opinion. It was ruled that the board could transact business anywhere in the county. No proof was adduced that two acted Avithout consent of the other; and, in the absence of evidence, it is presumed the.officers did their duty: Downing v. Rugar, 21 Wend. 178.

In absence'of a different provision in the charter or by-laws of a corporation, a special meeting of the trustees must be' called by giving personal notice, to each member of the board. A provision that a majority s'hall form a board for the transaction of business does not change the rule : Harding v. Vandewater, 40 Cal. 77. A meeting of stockholders regularly warned is competent to do any act within their chartered powers by a baré majority; yet, if not thus warned, their act Avould be void. If no mode of Avarning be prescribed in their charter or by-laAvs, personal notice may be given: Stow v. Wyse, 7 Conn. 214. When the statute vested the election of treasurer for the county and city of Dublin in the “board of magistrates of the county of the said city,” and an election was held in the absence of one of the magistrates Avho had not been notified, it was held that the election was invalid: Smyth v. Darley, 2 H. L. Cas. 789. See The People v. Batchelor, 22 N. Y. 128.

If tAvo of the commissioners, without notice to or knowledge of the other, can form a board for transaction of business, the statutory direction for notice is futile. To say they have convened in pursuance of notice is nonsense, unless Ave speak of notice to the two by a person Avho desires business of interest to himself to be done in the other’s absence. Such meeting savors of conspiracy. A designing man could observe the superiority of an able and upright commissioner over his weaker fellows, and take care to convene the two Aveaker ones for consummation of his purpose, if notice to all is not essential. Superior numbers often yield to superior weight, and sometimes the corrupt quail in presence of an honest man. Just in proportion as a clandestine meeting of two commissioners for transaction of business would be dangerous, is it to the interest of the inhabitants of the county that all three should have notice and opportunity to be present at every special meeting of the board. The opinions, reasoning, perhaps protest, of the one may advantage the county. He may prevent hasty and inconsiderate action. Had Greyer been present on the evening the bonds were signed, he might have discussed the matter with Rosecrans till Drake’s pendulous mind had swung the other way, and thereby saved the county from the Rowland contract. Be this as it may, Greyer ought to have had opportunity to consult, advise, and, if need be, protest. The defendant’s first point should have been affirmed. It is scarcely necessary to remai'k that no question is raised in this record respecting the validity of bonds or securities, appearing on their face to have been properly issued by the county commissioners, which have passed into the hands of strangers to the original transaction who are innocent holders for value.

We think the learned judge of the Common Pleas rightly determined the questions raised by the special verdict. Sect. 8, art. 9, of the Constitution is as follows“ The debt of any county, city, borough, township, school district, or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof at a public election in such manner as shall be provided by law; but any city, the debt of which now exceeds seven per centum of such assessed valuation, may- be authorized by law to increase the same three per centum, in the aggregate at any one time, upon such valuation.” In the constitutional convention the three divisions of this section were discussed, and the second was explained thus : “ The second division of the amendment provides that no new debt, or any increase of existing debt exceeding two per cent., shall ever be authorized by any municipality without the express assent of the electors of the municipality by a public vote.” This seems to have been the understanding of the convention : 6 Debates 143. The clause was doubtless so understood by the people at its adoption. In Wheeler v. Philadelphia, 27 P. F. Smith 338, a case soon after the’ adoption, where it was necessary to give a construction of the third clause of the section, relating to cities, it was remarked of the preceding : “ The municipal authorities may increase the debt from time to time until two per centum has been added, provided the original debt, with the increase, does not exceed seven per centum. After the two per centum has been added, there can be no further increase without the vote of the people.” Neither the debates, nor supposed views of the people, nor the dictum of this court, nor all combined, can set aside the plain meaning of a constitutional provision ; but if the sense of a clause be doubtful, the contemporaneous understanding is material. In strictness, -the words may mean as contended by defendant, but the context seems to make it clear that the true sense of the clause is a prohibition of a new debt, or increase of existing debt, exceeding two per centum of the assessed valuation, without a public vote. Where the debt is less than seven per centum, it was not intended that public officers of municipalities should be deprived of power to make immediate improvements and repairs of public property, which might become necessary, provided they keep within the limit of two per centum of the valuation.

The third assignment cannot be sustained. Hanners, as administrator, had right to control or sell the stock. He signed the writing giving assent of the stockholders, and that was sufficient, as respects third persons, whether he then held it as administrator, or it had vested in him as owner.

We discover no error in the rulings set forth in the remaining assignments.

Judgment reversed, and venire facias de novo awarded