Burgess v. School District in Uxbridge

100 Mass. 132 | Mass. | 1868

Chapman, C. J.

It is not denied that the defendants had power to prosecute the action against Mowry and others, but it is denied that they gave the plaintiff authority to do so. They chose a prudential committee, and voted to instruct them “ to oak into the rights of said district.” The terms of this vote imply an authority to consult counsel as to their rights ; but not authority to prosecute an action. Nor is the power to prosecute actions incident to the official power of the prudential committee. Their powers are carefully defined in Gen. Sts. c. 39; and this is not included. The cases cited, of Clark v. Great Barrington, 11 Pick. 263, and Kingsbury v. School District in Quincy, 12 Met. 99, do not favor the construction of the statute which is insisted on by the plaintiff. Nor are the defendants estopped to deny the authority of the committee, on the ground that they were officers de facto. An agent cannot estop his principal, nor a public officer his constituents, from denying that he has exceeded his authority. Nor did the subsequent vote of the district to stop the suit imply a ratification of what had already been done. It rather implied the contrary.

No authority having been given to the plaintiff to prosecute the action, he cannot recover for his services or expenses in doing so. But some of the items of his account are for consultations as to the rights of .the district; and it appears that the committee consulted with him on that subject. So far as the consul tations related to that subject, and not to the prosecution ot the action, he is entitled to recover.

Exceptions sustained.