Allen v. Archer

49 Me. 346 | Me. | 1860

The opinion of the Court was drawn up by

Rice, J.

Chap. 11, § 1, E. S., provides that school districts shall remain as they are until altered or discontinued. A town, at its annual meeting, may determine the number and limits of school districts therein; but they shall not be altered, discontinued, or annexed to others, except on the written recommendation of the municipal officers and superintending school committee, accompanied by a statement of facts, and on conditions proper to preserve the rights and obligations of the inhabitants.

The first clause of the above section recognizes the legal organization of existing school districts. The statute also provides that such organization shall not be changed except on the recommendation, in writing, of the municipal officers and superintending school committee. This prohibition was undoubtedly designed to prevent changes in existing districts without good and sufficient cause, and applies to all alterations thereafter to be made.

These preliminary proceedings were not had in the case before us. The changes made by the town were therefore informal, and unauthorized by law.

The proceedings of the town, however, appear to have been taken with much deliberation, and the re-arrangement of the districts seems to have given general, indeed, almost universal satisfaction to the inhabitants. This, however, does not change the legal character of these proceedings.

By c. 349 of the laws of 1859, the doings of the town of Eairfield, at the annual town meeting, held in said town on the eighth day of March, in the year 1858, in relation to re-districting said town for schools, are confirmed and made valid.

Statutes made to confirm acts by public officer's, which would have been void for some infox’mality, have never been questioned on constitutional grounds. Tate & ux. v. Stootzfoot & als., 16 S. & R., 35; Walter v. Bacon & al., 8 Mass., 468; Lock v. Dane, 9 Mass., 360.

Confirming Acts are not uncommon, and are very-useful. Deeds acknowledged defectively have been confirmed; and proceedings and judgments of commissioned justices of the peace, who were not commissioned agreeably to the constitution, or where their powers ceased on the division of couixties, until a new appointment, &c. Underwood v. Billy, 10 S. & R., 97.

Retroactive laws which only vary the remedies, divest no right, but merely cure a defect in proceedings otherwise fair: the omission of formalities which do not diminish ex-istixxg obligations, are consistent with every principle of natural justice. 10 S. & R., 97.

Such statutes have been held valid, when cleax’ly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights, as a statute to confirm former marriages defectively celebrated, or a xxote of hand defectively made or acknowledged, 1 Kent’s Com., 456.

Laws of this character, which are intended only to cure informalities and technical defects, and which do not ixxterfere with vested rights, nor impair the obligation of coxxtracts, are justly deemed statutes of repose, and tend to prevent litigation and strife in the community. They in effect declare, in relation to the informal and technically defective proceedings to which they refer, that hereafter such proceedixxgs shall be deemed valid and obligatory upon all parties who had not, at the date of their passage, acquired vested rights under them. Such is the character of the Act of April, 1859, c. 349.

The territorial description of school district No. 14 is certainly not very full and specific. We cannot, however, determine from the report that it is clearly defective. All the territory between two given lines may constitute a perfect description of the locality of such territory, and, in the absence of evidence to show the contrary, such will be presumed to be the fact.

The notices for calling the meetings of the town, in 1857 and 1858, as shown by the record of the officer’s return, were defective, inasmuch as the return does not show that said notices were posted in public and conspicuous places, as required by c. 5, § 6, R. S., 1841, and c. 3, § 7, R. S., 1857.

Such defect has been held to bo fatal in the proceedings of towns, and in the election of officers, in mimerous cases in this State. State v. Williams, 25 Maine, 569 ; Christ's Church v. Woodward, 26 Maine, 172; Fossel v. Bearce, 29 Maine, 523; Bearce v. Fossel, 34 Maine, 575.

In the case last cited, it was said by Appleton, J., in giving the opinion of the Court, — "The defendants, claiming to act as officers of the town, were bound to show the legality of the meeting at which they were elected, as, if that was not a legal meeting, they hold no official position.” And again, "the defendants, consequently, are to be regarded only as citizens of Bristol, and can have no greater rights than other inhabitants of that town.” The defect in that case was precisely the same as in the case at bar.

The defects in the manner of notifying the meeting in 1858, at which time the defendants were chosen assessors, were not affected by the confirming Act of 1859, cited above ; that act being confined in its operation to the acts of the town in re-organizing the school districts.

Nor do the provisions of c. 6, § 29, R. S., apply in this case. The defendants, having failed to show that they were legally elected asssesors, necessarily fail to show that the tax in question was one which they were by law required to assess.

Whether it would not be wise for the Legislature to enlarge the provisions of the section last cited, so as to include cases like the present, is not for us to determine.

It is objected, by the defendants, that it is not alleged in the plaintiff’s writ that the defendants were assessors. That is true, and that is one of the grounds on which the plaintiff desires to recover. The complaint is, that the defendants, not being assessors, assumed to act as such, and, in that assumed capacity, ordered the collector to seize and sell his property.

It is further contended, that there is a variance between-the allegation in the writ and the proof as to the identity of the property taken — that the writ alleges that defendants took the. plaintiff’s oxen, July 1, 1859, while the proof shows that said oxen were taken on the 16th of July, by Timothy Jones, collector of Fairfield.

The precise time of taking is not material, if it was within the statute of limitations. Nor is it material whether the defendants took the oxen by their own hands, or by the hands of the collector, acting under their direction. The proof in the case shows satisfactorily that the taking by Jones'was the act complained of in the plaintiff’s writ, and was done by direction .of the defendants.

.From the facts, as exhibited by the report and proofs introduced in this case, the plaintiff is entitled to judgment for the amount of the tax, cost and interest from the time of taking.

There was a motion made at the law term, accompanying this report, that the report be discharged, to allow the constable an opportunity to amend his -return according to the fact, to show that legal notice was given of the time and place for holding the meetings in 1857 and 1858. The affidavit of the constable tends to show that the facts would authorize such an amendment, if there are no other legal obstacles in the_ way. The defect being in its nature technical, and there being no suggestion of unfaithfulness on the part of the defendants, if they shall so elect, at the first term after this decision is announced in Somerset county, and pay the plaintiff his costs, the report may be discharged and the case stand for trial, otherwise judgment to be entered as above.

Tenney, C. J., Cutting, May, Goodenow and Davis, JJ., concurred.