Baldwin v. Town of North Branford

32 Conn. 47 | Conn. | 1864

Butler, J.

In this case the respondents admit that they were without authority of law to pass the votes of October 5th complained of, but interpose the act of November 13tli, which they claim conferred authority to ratify and confirm those votes, and aver a subsequent ratification of them pursuant to the act. The petitioners deny the legal efficacy of the act of November 13th, and the alleged confirmation of the votes of October 5th, on several grounds, all of which we have considered and think untenable ; and the reasons for that opinion applicable to the several questions will be given in the order in which the questions have been raised and discussed.

1. The petitioners claim in the first place, that the act of November 13th did not authorize a confirmation of the vote of October 5th, because the meeting of October 5th was not legally warned. To this claim there are several conclusive answers. First, the act was intended to reach such a case as this. That intent appears clearly from the preamble, which recites that certain towns have held town meetings, and without authority of law have appropriated money, &c. It is notorious' that most of the town meetings were warned and holden for that unlaivful purpose only, and were therefore de facto, but not' de. jure meetings. Construing the act then in connection with the subject matter, the intent to embrace de facto meetings is clear. And second, it is clear that the meeting of October 5th was de jure. It was warned and held as the annual 'town meeting. And the objections to the notice are not well founded, for several reasons. 1st. The term “ inhabitants ” in the statute, in common parlance and in the forms of notice immemorially used, and when used in such a connection, imports those who are qualified to act in town meeting. 2d. The notice confers no rights and the restraints are matters of statute, and the maxim “ majus in se continet minus ” may well be applied. If the notice had been addressed to the inhabitants of the adjoining town of Branford also, it would have been a good notice to the qualified voters of North Branford. And 3d, the address was superfluoris. The statute requires nothing of the kind. It requires a notification in writing, (that is, a writing giving information,) “ specifying the objects for which they (the meetings) are to be held, signed by the selectmen or a majority of them, set upon the sign-post or sign-posts in the towns, at least five days exclusively before the meeting is to be held,” and adds that such a notice “ shall be sufficient notice to the inhabitants to attend such meeting.” Rev. Stat., tit. 3, § 19. If therefore the words “the inhabitants of” were left out of the notice it would be good. And so it would if it had simply said, “ The annual town meeting of the town of North Branford will be held,” &c., for it would have been all the notification required by the letter, spirit and purpose of the law.

2. It is claimed in the second place, that the votes complained of were invalid because there was in the notice no sufficient specification of an intention to pass them. That is so, unquestionably. The notice contemplated a tax to pay a particular debt already incurred, but the votes passed gave new gratuities and contemplated a new and further and different use of the money of the town ; and unless the town were authorized by the act of November 13th to ratify and confirm such votes, they remain illegal. We are of opinion that the act did authorize their ratification notwithstanding the defect. The preamble recites that meetings have been held, and “without authority of law have appropriated money,” and the language of the first section referring to it is, “ where any such meeting or meetings have voted,” &c., and it is broad enough to embrace any and all meetings, whether de facto or de jure, at which money was appropriated to aid drafted persons, and any and all votes passed without authority of law. The votes in question were without authority of law in two particulars,—first, because the town had no authority to pass votes for any purpose not specified in the notice, and second, because without special authority they could not pass the votes in question at all; and one is as much within the purview of the statute as the other. .It is indeed said that the votes were by another provision of the law to be confirmed and “ considered good and valid in the same manner as if such town or towns had the inherent legal power to so appropriate money.” But by that we are satisfied no limitation of the confirmation previously provided for was intended. For, in the first place, the towns do not possess and never have possessed any inherent legal power, and the General Assembly could not have contemplated its existence ; and in the second place, legal power is the same thing and not different, whether inherent or statutory. All that was intended by that phrase was the power to do the act, variously spoken of in the statute as “ inherent legal power” and “ authority of*law.”

3. It is said in the third place, that the vote of October 5th is void for generality 'or uncertainty. But the language of the act of November is as general, and describes and embraces just such votes, and authorizes their ratification. The objection therefore is as applicable to the law as the vote, but is without force in respect to either. Both, when construed with a proper regard to the circumstances surrounding the subject matter on which they are to act, intend persons drafted from the town to fill the quota of the town. And such is the construction given and admitted by the petitioners in their petition, and they can not be permitted to assert the contrary as an objection to the validity of the vote.

4. It is further insisted that inasmuch as the vote directed the orders to be drawn immediately, and they were not drawn before the confirmation was had, that confirmation and the vote of January 18th can not authorize the giving orders now. We do not perceive the force of the objection. Besides, the execution of the vote was and is suspended by the injunction obtained by the petitioners, and awaits a determination of this case.

5. Nor do we think there is any foundation for the fifth objection. Undoubtedly the legislature intended to give the towns specified an “ opportunity to confirm their said acts when they were invalid by reason of the want of statutory power.” But as we have already said, all their powers are statutory, and the want of power to act at all in respect to any particular subject matter, and the want of power to act because no meeting was called for that purpose in conformity with a statutory requirement, are both defects of statutory power. In both cases the action is illegal because the “ legal power ” or “ authority of law,” has not been delegated or has been withheld.

6. It is insisted lastly that the notice of January 11th, and the votes of January 18th, 1864, are not within the provisions of the act of November 18tb, 1863, and under this point several specifications are made. We do not deem a particular consideration of each of them necessary. Several are repetitions of objections made in another form and already considered. It is sufficient to say with respect to them, that the statute was intended to give all the towns which had held meetings and appropriated money in aid of drafted men, and during a certain period, an opportunity to confirm such votes, if such was their sober second thought; that in doing that they specified the act of congress, and the only one which was in force and being carried into effect during the period indicated ; that by necessary implication, when the notices or votes of the towns referred in general terms to any act of congress, or to drafted men or boards of enrollment, they referred to the act of congress specified in the act of November 13th, and to action had under it and no other; that when any corporation act under a law, by-law or practice which requires in order to any expenditures of their monies that a certain officer or certain officers shall draw an order on the treasurer, such order, like a bank check, is a method of payment, and a vote directing the giving an order is an appropriation of money in the ordinary acceptation of the terms, and within the meaning of the act of November 13th ; and that the language of the vote of January 18th is in precise conformity with the language of the act of November 13th in respect to drafted men, and there is no evidence or presumption that the authority given by the vote to the selectmen will be exceeded.

We see no further occasion or justification for a continuance of the injunction.

The bill should be dismissed, and we so advise the superior court.

In this opinion the other judges concurred.