Boston Turnpike Co. v. Town of Pomfret

| Conn. | Aug 15, 1850

Lead Opinion

STORRS, J.

The first question presented on this motion, is, whether the entry of the vote of the town of Pomfret, as originally made, by the clerk of that town, and as evidenced by the copy produced by the plaintiffs, or the entry of it as amended by him, and as it now appears on the record book, is to be deemed the true record of the proceedings of the town; and this depends on the question, whether the clerk had the legal power to make that amendment. A majority of the court are of opinion, that beth on principle and authority, it was competent for him to rectify any error which he had made in recording the proceedings of the town, by amending the record, so that it should describe those proceedings truly.

Our statutes expressly require town-clerks to keep the record books of their respective towns, and to enter truly all the votes and proceedings of the town. Tit. iii. ch. v. 58 p. 147. This duty is not performed, by an erroneous entry of those votes and proceedings; and unless we are to adopt the technical idea, that, as to any particular proceeding of the town, the clerk isfunctus officio as to his power of recording it, when he has once made an entry of it, however untruly, on the record book, we can perceive no good reason why it may not be rectified by him. We know of no authority which requires so narrow a construction of his powers: and it would, in many cases, work great inconvenience and injustice, not only to the town whose proceedings are thus recorded, but to others who are interested in those proceedings. If, when the entries of them are once made, it is beyond the power of the recording officer to amend them, it would be necessary, in every case of error, for those who might be affected by them, to resort to the dilatory and expensive remedy by mandamus, in order to have them corrected; and in many cases, there would be reason to fear, that such remedy would be quite inadequate, from lapse of time, or the death of the clerk, whose official position furnishes him the best means of knowing or ascertaining what was done by the town, or the conflict of memory among the spectators, to whom it would be necessary to resort for proof of the proceedings. Nordo we perceive any propriety in requiring this remedy to be resorted to, where the clerk is ready to correct his error. By amending the record himself he only does what the court would direct him to do, on the ground that his duty required it. An application for a mandamus, in such case, is generally unnecessary. To require it, would be to adopt a rule more strict than that which prevails in regard to amendments of judicial records.

But the law attaches much less sanctity and importance to the entries of the votes and proceedings of public corporations in their books, which are not technically records, but are termed public writings not of a judicial character, than to records properly so called, although the former are considered to be in the nature of records, and indeed are called such in our statutes, and have a like force and effect, when adduced in evidence.

Courts, however, have never adopted, and from their nature it would not be practicable to adopt, those strict, technical and peculiar rules as to their correction, which apply to the amendment of judicial records. On the contrary, it is deemed of so great importance to uphold the proceedings of our municipal corporations, that courts are disposed to be as indulgent in allowing entries of their proceedings to be amended, as is consistent with the safety of those whose in- terests would be affected by them. From carelessness, on the part of the clerks of our towns and other municipal corporations, or their not sufficiently appreciating the importance of fully and precisely describing their proceedings, they are frequently entered on their records very loosely and irregularly; and it is not to be expected that those officers will always be competent to perform their duty, in this respect, with the correctness which is desirable: to hold, therefore, that their entries, as first made, are beyond the reach of their subsequent correction, would produce the greatest confusion,

It is urged, that the sanctity of our records, and the security which they are designed to furnish, would be destroyed, and that they would be subject to constant mutilation and change, if, when once made, any alteration of them is to be tolerated.

We think, however, that while the amendment of them is confined to the officer whose duty it was originally to make them, and is allowed even to him only while he is in office, there is no serious ground for apprehension.

In the first place, there is every practicable security furnished to ensure a faithful discharge of the duties of these officers. They are selected, by the inhabitants of the towns, presumably for their integrity and capacity for the office; they are under an oath faithfully to execute its duties; their records are open to public inspection; and their entries, in the first instance, as well as any alteration of them, are made at their peril, as they are personally liable for all injuries arising from a violation or neglect ofduty. These coustituteas strong safeguards against falsehood in amendments to the original entries, as in those entries themselves.

But, lest these securities should prove insufficient, the law further provides a most effectual remedy for any errors in their records, whether arising from design, mistake, or accident, by the writ of mandamus, by means of which these errors may be corrected, on the application of any person interested; so that whatever may be the conduct or disposition of the clerk, it is not at his option, either as to his first entries or subsequent alterations, to determine how the record shall ultimately stand.

The authorities fully establish the power of clerks of towns and other municipal corporations, to amend their records, while they continue in office.

In Welles & al. v. Battelle & al. 11 Mass. 477" court="Mass." date_filed="1814-10-15" href="https://app.midpage.ai/document/welles-v-battelle-6404240?utm_source=webapp" opinion_id="6404240">11 Mass. R. 477. the record was made by the town-clerk, when in office, under a former election, and was amended by him, by adding to it words, showing by whom the oath of office was administered to him, when he was formerly elected to the office, and also to assessors chosen at the same meeting; and the amendment was made several years after the original entry of their appointment, and after the suit was brought against said assessors, in which it was necessary for them, in order to sustain their defence, to show by whom the oath to them was administered; and the amendments were held to have been legally made.

The correctness of this decision was recognized, by the same court, in Hartwell v. Littleton, 13 Pick. 229. in which, however, it was decided, that one who was formerly a town-clerk, could not, after he had ceased to be such, amend a record made by him while he was in that office.

In Bishop v. Cone & al. 3 N. H. Rep. 516. it was held~ that a town-clerk, while in office, might amend his record of a vote of the town to raise money by a tax, under which vote the defendants justified, as select-men of the town~in an action of trespass de bonis, brought against them for issuing a warrant for the plaintiff's proportion of said tax, where the vote, as amended, would constitute a justification to the defendants in issuing said warrant, but as originally recorded~ would be no defence.

In Chamberlain v. The Town of Dover, 13 Maine R. 466. which was an action of assumpsit on a contract alleged to have been made with the plaintiff, by certain persons assuming to be authorized, by the defendant, to coptract on their behalf, a vote of the defendants was, at the instance of the plaintiff, allowed to be amended, after the commencement of the suit, by the present clerk, who made the original record, so as to show such authority, which did not appear from the vote, as originally recorded. The court say: "It is the duty of the clerk to record the doings and proceedings of the town; and if through inadvertence or misapprehension, the record has been defectively made, it is competent for him, while in office, to complete it according ~o the truth. He acts at his peril, and will be liable, if he falsifies or mistakes what it is his duty to record." This case shows the invalidity of the objection made to the amendment, in the present case, on the ground that it respects the terms of a contract between the parties. The vote is only an act of the town which furnishes evidence of the contract; and in regard to the propriety of allowing it to be amended, we perceive no difference between such a vote, and any other by which its own interests, or those of others, may be affected.

Nor is the amendment invalid, in this case, because it was made, by the town-clerk, not on his own personal knowledge, but on information derived from others. An amendment of a record stands on the same ground, in this respect, as the original record; and neither can be impugned, by an enquiry into the sources of knowledge on which it was made. It is not unusual that entries in our public records, even in those of a judicial character, are made by the recording officer, without any personal knowledge of the truth of what is recorded: but, when thus made, has it ever been supposed, that they were not to be deemed records, on that account? It is sufficient, that the fact recorded is ascertained by him, by whatever means, and that it is recorded by him, or by his authority.

Nor is his power originally to make, or afterwards to amend, a record, to be determined, by an enquiry into the truth of it, as so made or amended, Such power is derived solely from his official characterr and does not depend on the permission of the court in which the record is offered as an instrument of evidence. The only enquiry then, is, whether it is a record. Being shown to be such, it imports absolute and uncontroulable verity, and is, therefore, conclusive evidence of the facts which it states. It would be obviously absurd to make its admissibility or effect, as a record, depend on previous proof of its truth.

We attach no importance to the testimony adduced, in this case, as to the truth of the facts stated in the record as amended, as it was not claimed, that the amendment, if erroneous, was made fraudulently. The town-clerk having legal authority to make the amendment, and having exercised it honestly, the amendment was, like an original record, conclusive evidence of its own truth; and it was the duty of the court to receive it as such. If it was in fact false, the remedy was a suit, by the party injured, or an application for a mandamus.

We think, therefore, that the amended record offered by the defendants, on the trial, is to be deemed the true record of the vote of the town; and that, as it did not support the contract declared on, the plaintiffs are not entitled to a new trial. Hence it is, unnecessary to determine, whether the defendants had authority to make that contract.

In this opinion, Waite and Ellsworth, Js. concurred.

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Dissenting Opinion

Church, Ch. J.,

dissented. The plaintiffs offered in evidence, a certified copy of the vote of the town of Pomfret, in support of their claim. This was the proper evidence of the fact intended to be proved by it. The defendants attempted to repel its effect, by introducing what purported, on its face, to be the original record, but which was not in truth the original, but on the contrary, was one which the town clerk had mutilated, and essentially altered from its original shape and substance, into the condition in which it appeared on the trial. And the real question is, whether the town-clerk had a legal right to alter the record of the votes of the town of Pomfret, under the circumstances set up in the motion.

The vote was passed, at a town-meeting, on the 2nd day of October, 1843, and was then recorded. This record was altered, in March, 1849, six months after this suit was commenced ; and it was altered without the aid of any written memorandum to aid the memory, and without any recollection by the clerk of the new and different fact inserted into it, and only upon the verbal representations made to him, by the moderator of the meeting, and of other respectable persons, nearly five years after the meeting was holden.

I cannot acquiesce in the views expressed by the court; and I am persuaded, if the principle and the practice, now sanctioned, shall prevail and be applied to other cases, that they must have the effect of extensively disturbing titles, derived not only from the acts of corporations, but also from deeds and judicial records. Our public records have, hitherto, been supposed to furnish the best evidence of the facts stated by them, and to be a safe reliance. If a town-clerk may, without any reliable memorandum, and even unaided by his own memory, thus alter a record of a town vote, he may, depending alone upon the distant and uncertain recollection of others, as well change the certificate made upon a deed of land when left for record, and overturn the titles of purchasers. And so too, the clerk of a court, who like a town-clerk, is only a ministerial officer, may, in the same ex parte manner, essentially alter the records of the court. In this way, the uncertainty of representations is substituted for recorded and sworn truth.

Since the decision of the case of Wilkie v. Hall, 15 Conn. R. 32. I supposed it'was considered settled, in this state, that the record of a court could not be altered by the clerk, after the expiration of the term at which the cause had gone into judgment ; because then he was the mere keeper of the record; and then, it riquired the interference of the court itself, to justify as alteration in a material part. The same salutary principle is equally applicable here, so far as the cases are analogous. And here, after such a lapse of time, and without memorandum or memory to aid the clerk, application should have been made, by proper process, to a proper court, to correct a mistake in the record, if one existed, and thus give to the opposite interested party, an opportunity to show that the record was already right.

Cases in other states have been relied upon here, in which town-clerks have been permitted, under certain circumstances, to alter town records; but none of them compare with this; and I believe none can be found, where an ex parte alteration has ever been sanctioned, unless upon what courts have believed to be equivalent to the certain recollection of the clerk.

A record of a municipal corporation, certainly when made under the influence and sanction of an official oath, imparts as much truth and certainty, as a simple contract in writing, and as much as a deed under seal; but these cannot, in a collateral way, be altered or impaired, by any parol evidence or representations of witnesses, not even when such representations are made by witnesses under oath, much less by the mere unattested representations of even respectable men.

But this alteration is justified, because it is said to be ac- cording to the truth. Non constat, This is the very thing in dispute; and the plaintiffs complain here, that these parol representations have been permitted to controul the true original record, of which they had been furnished with a certified copy. Parol evidence is often offered to controul a written contract, in the same collateral way; and is always offered to change or alter it, as in this case, according to the truth but it is always rejected. Suppose a party, or a stranger, had altered a written contract; and, in an action upon it, should offer evidence that it was only altered according to the truth, and should offer parol evidence to prove it; would it be admitted, on this ground, or any other? Nobody will claim this. But, in the present case, witnesses were offered, and admitted, to prove, that this record was altered according to the facts of the case ; and as well may they be admitted in all cases where a party seeks to break down written securities, by parol evidence, He has only to alter them, and then prove they were altered according to the truth.

To prove the acts of municipal corporations, acts of legislation, &c., we require a certified copy of the records; but why do we require this, if verbal declarations are of equal certainty, and indeed controuling proof?

Suppose, in the present case, the contract in question, instead of assuming the form of a corporate vote, had been executed by the plaintiffs, on one part, and an authorized agent of the town of PoMfret, on the other; would parol declarations, or parol proof, have been admitted, to show what the defendants now claim to prove?

If, then, a corporate vote, duly recorded by a sworn clerk, is of equal verity with a simple contract in writing, the declarations of witnesses, made to the clerk, without oath, and the parol testimony of witnesses admitted in court, were improperly received and heard.

The defendants have referred us to authorities, which prove, that an alteration cannot be made in a town record, by a former clerk, not now in office. But why not, if the propriety of the alteration depends upon the fact whether it conforms to the truth of the case? It can then make no difference, whether the alteration be made by a clerk in or out of office, or even by a stranger.

I am persuaded that a material alteration cannot be made in any record, by the mere ex parte act of the clerk, unless it be made under the sanction and influence of his official oath; an oath, if I mistake not, which requires him to make a true record, not of what he has heard, and therefore believes, but of what he knows officially; and this principle, I think, is very clearly recognized, by the court, in the case of Hartwell v. Littleton, 13 Pick. 229. cited by the defendants.

The question was put in argument; must a party suffer by a mistake, or the neglect of a clerk, and is there no remedy? Yes, there is a remedy, a plain one, and such an one as is resorted to every day, in cases of mistakes or omissions in deeds, or other written instruments, and where they do not express the truth of the case ; but this is not by permitting a party, or any body else, to alter them, but by an application to a court of equity, or in cases of records, by mandamus, in which the parties in interest can be heard upon the very question, and the deed or the record be set right, by authority of law, and not by any unauthorized individual. This is the only way, as it seems to me, in which justice can be done, titles and rights protected, and the analogies of the law preserved.

In the case of Wilkie v. Hall, it was said, that the amendment was made too late, because nearly five years had elapsed from the time the officer had made his return, which he attempted to alter. In the present case, the same thing is true.

HINMAN, J. was of the same opinion.

New trial not to be granted.