Ford v. Clough, 8 Me. 334

Ford v. Clough

8 Me. 334 | Me. | 1832

Mellen C. J.

delivered the opinion of the Court, at the ensuing May term in Kennebec.

By inspection of the bond declared on, it appears that the condition contains the following recital: “ Whereas the said Samuel Clough was duly chosen and appointed on the third day of April to the office of collector of taxes within said town of Aina, for the year next ensuing from said third day oí April, and fully to be *341complete and ended.” Then follows the condition of the bond as copied into the report that “ said Samuel Clough shall faithfully discharge his duty as collector as aforesaid.” The report states that he was chosen for the year 1826. From the language of the condition nothing appears to be assumed by the obligors but that Clough should faithfully perform those duties which the law, on his acceptance of the office of collector, devolved upon him, and required him to perform. The sureties have not bound themselves to indemnify the town against the consequences of any irregularities on the part of the town in its corporate transactions, or any irregularities or neglects on the part of the selectmen or assessors or constable. If the object of the action were to recover damages for any such irregularities, they might well say that the condition did not embrace liabilities consequent upon such irregularities or neglects; non in hcec federa venimus would be a very natural and pertinent answer to such an asserted claim. The inhabitants of Aina complain of no one, as having violated his official duty, but Samuel Clough ; but as to him they complain that he had neglected to pay over the monies which he had collected for the town. He contended that he had paid to the treasurers of Aina twenty-four hundred and sixteen dollars and sixty cents, for the town taxes of the year 1826, and that the same was accepted by said treasurers in full for such taxes. This contested question of fact the jury have settled by returning a verdict in favor of the plaintiff for the sum of six hundred and thirty-nine dollars and sixty-five cents.

Viewing the cause in this light, the inquiry at once presents itself, “ If the defendants are not legally answerable for the misconduct or neglect of the town, the selectmen, assessors or constable, on what principle should they be permitted to defend themselves in the present action, by shewing that the proceedings of the town, the selectmen, the assessors and the constable, in relation to the taxes in question, were irregular ?” Should it be admitted that those proceedings were irregular, as has been alleged, and that Clough might be prosecuted by those whose taxes he has collected and be compelled to reimburse the monies thus demanded and received by him *342on account of such irregularity; still that is no reason why proof of such irregularities should be admitted for the purpose of defeating this action. For in this action the obligors are all bound by their own bond, sureties as well as principal,' for the official fidelity of Clough; but the sureties would not be answerable to those from whom he exacted the payment of taxes, if he acted without legal authority. No facts appear on the report tending to show that the taxes were not all voluntarily paid to the collector ; nor have we arty ground. for presuming that any of those who have paid their taxes to him would ever think of attempting to reclaim the monies so paid. Besides, a proper action for the purpose of reclaiming such taxes, if illegally assessed, would be an action of assumpsit against the town, whose agent had received the money; Amesbury Woolen and Cotton Manufacturing Company v. Inhabitants of Amesbury, 17 Mass. 461; or an aotion of trespass against the assessors for the illegality of the assessment. Such is the usual action, where the illegality is on the part of the assessors ; and by our Stat. of 1826, ch. 337, the assessors are declared to be liable for their own acts only, and not any antecedent acts on the part of the town or parish, whose officers they are. For the same reason the collector is not considered as responsible for any irregularities on the part of others, antecedent to the commitment of the assessment to him for the purpose of collection. His warrant is his protection against all illegality but his own. Holden v. Eaton, 8 Pick. 436. For these reasons we are of opinion that according to the facts, as found by the jury, the condition of the bond has been violated by the unfaithfulness and negligence of Clough, in not paying into the town treasury the monies he had collected on the bills of assessment committed to him for collection; though such bills were liable to the objections urged against-them by reason of the specified imperfections therein and omissions of duty on the part of the assessors, before and at the time of commitment. He violated the condition of the bond by not paying over the sums collected, as he would have violated it by his not duly collecting it of the persons named in the bills of assessment. After having thus collected the money, *343we think he ought not to be permitted to deny the legality of the assessment of 1825 or 1826, on account of the omissions of the assessors named in the report.

With respect to the other objections which have been urged, we proceed to express our opinion, though perhaps it may be considered as to some of them, an unnecessary labor.

The objection to the legality of the meeting in April, 1826, cannot be sustained a moment. The condition of the bond contains an explicit recital that Clough was duly chosen at that meeting, which could not have been the case if the meeting was not a legal meeting. By this recital the defendants are estopped to deny its legality. 1 Roll. 872, h. 50; Dyer, 196, a.; Willes 9,25; 4 Com. Dig. Estoppel a. 2. The meeting being legal, the proceedings mentioned in the report were also legal.

As to the warrant for the meeting in April, 1825, it is not illegal, because two town meetings were called by it. The qualifications of the respective voters in each, were distinctly specified. The case of Craigie v. Mellen Sf al. 6 Mass. 7, is directly in point. The return of the constable is not now open to objection. The case of Tuttle v. Cary, 7 Greenl. 426, differs essentially from this. That was the case of a warrant for calling a parish meeting, the manner of warning which was particularly prescribed in the parish act. But the manner of warning a town meeting is not prescribed by any statute in this State. The words of the third section of our statute ch. 114, in relation to this subject are these, viz. “the manner of summoning the inhabitants to be such as the town shall agree upon.” Now the case before us does not show that the town of Alna had ever agreed upon the manner of summoning the inhabitants ; but as it appears that they did assemble in town meeting, at the time appointed, and act under the warrant, by electing town officers, raising sums of money, fee. fee. we ought to presume that they knew how they had been summoned and were satisfied; so that in regard to that meeting they agreed to the manner of summoning, whatever it was : their conduct sanctioned it as a legal meeting duly warned and lawfully assembled. The constable’s re*344turns on the several warrants for the meetings in 1825, 1826, and 1831, all bear date of the days on'which the respective meetings were holden ; but this has frequently been decided to be no legal objection to the legality of the meetings. Thayer v. Stearns, 1 Pick. 109. It is the common practice, and sanctioned as legal.

Neither can the objection prevail which has been urged against the assessment of 1825, on the ground that a town cannot legally vote money for parochial purposes since the parish act was passed in 1821. A similar objection was made in Jewett v. Burroughs, 15 Mass. 464, considered and overruled. The same principle was also recognized and confirmed by this court in Parsonsfield v. Dalton, 5 Greenl. 217; Richardson v. Brown, 6 Greenl. 355, and again in Osgood v. Bradley, 7 Greenl. 411, especially in reference to the character and operation of the parish act. We do not perceive any weight in the objection as to the supposed insufficiency of the article in relation to the building a bridge to authorize raising money for the purpose. To raise the sum mentioned was deemed the most proper and effectual measure for the purpose.

In answer to the objection urged against the admissibility of Dole, we would observe that the town meeting of April 4, 1831, must be deemed to have been legally warned and holden, for the same reasons which we have assigned in regard to the meeting of 1825. But it is contended that the town had no authority to pass the vote, releasing Dole from all liability to the town, as it amounted, if it could have any operation, to a gift of whatever sum of money he owed the town. In the- first place there is no proof that he did owe the town any thing. There was a question then depending, whether he Or the defendants owed it. The town believed that the sum in controversy had never been accounted for to the treasurer, Dole, while in office ; and, in order to establish the fact and save the town from loss, it was deemed most for the interest of the town to release a doubtful, or possible claim on Dole. Towns must always act by majorities, and we are not aware of any decision showing that the town could not legally reléase a debt as well as contract one. We apprehend that perhaps it does not follow ne*345cessarily that a town may not expend or give away a sum of money lawfully, though they could not legally reimburse the treasury by a tax, voted and assessed specially for that purpose. In Kempton v. Stetson & al. 13 Mass. 272, the court, by Parker C. J. say, “ whether any money actually in the treasury, beyond what is needed for the ordinary expenses of the town, and which is not appropriated, may not be disposed of, in pursuance of a vote of the inhabitants, for the common defence of the inhabitants, is a different question from the present, and which we need not now determine. We confine ourselves to the case before us, which is that of a tax founded on a vote to raise money, &c.” The vote passed releasing Dole from liability so as to remove the objection of interest, operated as effectually as a release by one individual to another formally executed. A corporation may contract by vote and the vote will bind the corporation; and may by vote release an individual from a contract by which he is bound to such corporation. There can be no question we think as to the correctness of this principle. Nelson v. Milford, 7 Pick. 18. It follows, as a necessary legal consequence that the vote of reconsideration, passed at the meeting in September following, was wholly unavailing. It did not and could not affect the vested rights of Dole, acquired by him under the vote passed at the April meeting. The result is that Dole was a competent witness and properly admitted. We have thus noticed all the objections of a legal nature which have been urged, and the rulings of the Judge upon all of them; all of which we approve. We see no grounds for sustaining the m©tion for a new trial, and there must be

Judgment on the Verdict.