Burge v. Town of Rockwell City

• Decision Date: 19 May 1903
• Citation: 94 N.W. 1103,120 Iowa 495
• Parties: WILLIAM BURGE, Appellant, v. TOWN OF ROCKWELL CITY
• Court: Iowa Supreme Court

94 N.W. 1103

120 Iowa 495

WILLIAM BURGE, Appellant, v. TOWN OF ROCKWELL CITY

Supreme Court of Iowa, Des Moines

May 19, 1903

Appeal from Calhoun District Court.--HON. S. M. ELWOOD, Judge.

ACTION on contract for the price of sinking a well; also for the reasonable value of the work done. Judgment was rendered on a directed verdict for the defendant. The plaintiff appeals.

Affirmed.

John Newburn for appellant.

E. C Stevenson for appellees.

OPINION

LADD J.

Much of the work by municipalities is executed by committees duly appointed by their governing bodies. In matters wherein they act in behalf of the state for governmental purposes, methods of procedure are usually, though not always, definitely prescribed. If the exercise of legislative discretion is exacted, the power to act may never be delegated. Affairs pertaining to the control of utilities in which the city or town enjoys a proprietary interest are quite generally left to the management of the local authorities, under such methods as they may deem it wise to adopt. In exercising their powers in respect thereto the governing bodies may, in the absence of statutory restrictions, delegate all functions purely ministerial or administrative to committees of their own members, by whose action the corporations are bound as absolutely as though these bodies had acted directly. Driscoll v. Ind. School Dist. of Council Bluffs, 61 Iowa 466; Hitchcock v Galveston, 96 U.S. 341 (24 L.Ed. 659); State v. Asbury Park, 62 N.J.L. 158 (40 A. 690); Baily v. Philadelphia, 184 Pa. 594, (39 L.R.A. 837, 63 Am. St. Rep. 812, 39 A. 494); Ecroyd v. Coggeshall, 21 R.I. 1 (41 A. 260, 79 Am. St. Rep. 741); Birdsall v. Clark, 73 N.Y. 73 (29 Am. Rep. 105); 20 Am. & Eng. Enc. of Law, 1219. Nor is unanimity of such committees required. In Sioux City v. Weare, 59 Iowa 95, 12 N.W. 786, the rule was laid down that "where power is intrusted to two or more, without an express provision that either one alone may exercise it, it can be exercised by the concurrent action of at least a majority." See, also, Mallory v. Montgomery County, 48 Iowa 681; Rice v. Plymouth County, 43 Iowa 136. If composed of two members only, both must concur. Rider v. Portsmouth, 67 N.H. 298 (38 A. 385.) In Murdough v. Revere, 165 Mass. 109 (42 N.E. 502), the court held that a part of the members of a committee, by their separate action, not at a meeting of the committee, cannot set aside the formal action of the committee as a whole. As to whether an agreement of all the members of the committee, acting individually, is binding, see Shea v. Milford, 145 Mass. 528 (14 N.E. 764). Says Judge Dillon, in his work on Municipal Corporations (section 283): "If all the members of a select body or committee, or if all the agents, are assembled, or if all have been duly notified, and the minority refuse or neglect to meet with the others, a majority of those present may act, provided those present constitute a majority of the whole number. In other words, in such case, a major part of the whole is necessary to constitute a quorum, and a majority of the quorum may act."

Ordinarily all members of a committee should be notified of the time and place of its proposed meeting. Even though a majority will control, the minority ought to have the opportunity of being heard, for no one can say in advance what the effect of full discussion will be. Possibly, where notice would be unavailing, as in the case of absence or physical inability to attend, it may not be essential--a point not necessary now to decide. Certainly, in the absence of all excuse, two of three members of a committee cannot get together, without notice to the third, and undo what the three in former session have agreed upon. The rule is quite clearly stated in Martin v. Lemon, 26 Conn. 192: "If the act is merely ministerial in its character, a majority must at least concur and unite in the performance of it, but they may act separately, and need not be convened in a body, or be notified so to convene for that purpose; but if the act is one which requires the act of discretion and judgment, in which case it is usually termed a judicial act, unless special provision otherwise is made, the persons to whom the authority is granted must meet and confer and be present when the act is performed, in which case the majority of them must perform it; or, after all of them have been notified to meet a majority of them, having met, will constitute a quorum, or sufficient number to perform the act, and, according to some modern authorities, the act may be legally done by the direction or with the concurrence of a majority of the quorum assembled." Damon v. Granby, 19 Mass. 345, 2 Pick. 345, 359. This decision was subsequent to that of Gallup v. Tracy, 25 Conn. 10, where a committee of four was appointed at a town meeting to stake out oyster grounds. One member called two others together, and, by their concurrence, staked out the bed. The other member had been forgotten, and for this reason was not notified. The action of the committee seems to have been upheld on the theory that the statute authorized the members to act seriatim. Such, also,...