Hutchinson v. Pratt

11 Vt. 402 | Vt. | 1839

Williams, C. J.

In this case the defendants, who are sued as trespassers, defend on the ground that they were trustees of the village of Woodstock, that, acting as such in pursuance of a vote of the village, they made out a rate bilí and warrant, for the collection of a tax, and that the act complained of by the plaintiff, was done by the collector in collecting the tax. The defendants were trustees, duly elected, chosen and qualified. The collector was also duly elected and qualified. No question has been made as to them. The points which are made in this case are, 1st. whether the evidence was proper, or sufficient to prove that the tax was voted 2 2d. Whether the tax itself was legal ? It appears that the meeting was legally warned, and no exceptions were taken to the proof of this fact. When assembled, it was competent for the inhabitants, thus legally assembled, to transact any business specified in the warning, unless the purposes for which they were warned, and the business to be transacted were illegal. Waiving for the present the consideration, as to the legality of the business to be transacted, and assuming that the tax was legal, we will proceed with the inquiry, whether the evidence of this was properly received. And here, as the suit is not against the corporation, nor against any officer who has omitted any duty required of him, we cannot but be struck with the obvious injustice, if not impropriety, of subjecting those to an action, who have acted under a vote of the corporation, legally enacted, because either the corporation or the officers have neglected their duty, in not recording their proceedings. We think, however, that the evidence was properly received, and was satisfactory, for either of the following reasons.

1. The doings of that meeting were placed upon the records, under the direction of the legal officer, to wit, N. Haskell, the village clerk, and that it has received the approbation of the village, inasmuch as no measures have been taken to correct the record in this particular, or to obliterate it. The presence of the clerk is not necessary to the validity of a meeting, nor does it follow that he cannot record any proceedings unless he were present. If it did, it would follow that if he were called out for any time whatever, the proceedings must stop until he returned, and the same would be true of all other clerks, whose duty it is to keep minutes and make entries of any proceedings. The village clerk was the keeper of the records, and It was his duty to see that nothing was entered on them, but what he was fully satisfied was proper, and that no person, without his authority, should presume to enter any thing as records or minutes of the proceedings of the meeting. He is made not only the keeper of the records, but also the certifying officer as to copies. But in making the entries or records of the doings of any meeting, he acts as the servant or agent of the corporation, and I cannot doubt that it is competent for them to correct any mis-entries which he may have made, or to direct him so to do. Further, it may be observed, that although a clerk may omit to record the proceedings of any meeting, it does not follow that the omission cannot be supplied. A town clerk may be taken sick, or become incapable of making the neeessary records immediately after the meeting is held. If a town clerk should thus be prevented by sickness and death, or any inevitable necessity, from perfecting his entries, and the reeting should be dissolved, can it be doubted that the town, at a subsequent meeting, could supply the omission by causing the proper entries to be made, and, when made and recognised by the town, that the record would be legal evidence ? This subject appears to have been partially considered by the court in the case of Exr’s. of Booge v. Parsons, et al. 2 Vt. R. 456. It was there held that a copy of a deed found upon the book of records in the hand writing of the town clerk, who then had the custody of the books, but which wanted the certificate, or attestation of the clerk, was admissible in evidence as proof of the existence, contents and recording of the deed. If this was admissible, as evidence of the title of real estate, the reasons are stronger for admitting such kind of proof as evidence of the proceedings of a corporation.

2. We think it was competent for Chandler to keep the minutes of the proceedings, and record the same with the consent of the actual clerk, and that his neglect to take the oath does not vitiate or avoid either his doings or those of the village.

It must, from necessity, be in the power of any corporation, whether public or private, to appoint a person as clerk, pro tem. for the purpose of making the entries of what was done by them. Such an appointment supposes the offices to be filled, but, as the duties required of such temporary officer are only ministerial, he is empowered, for the time being, to perform them, for and in behalf of the regular officer. Where there is a vacancy in the office, as in the case of a town clerk, the legislature have provided for the performance of the duties by other persons. “ The trustees may designate one of their number to perform the duties,” &c., and fill any temporary vacancy, — “ in case of the death, removal, absence, or incapacity of the clerk.” The object of this part of the act is to make provision for filling any vacancy, whether permanent or for a time, and cannot apply to a case where the clerk simply omits to attend a meeting. It cannot be considered a duty, arising under this clause of the act, for the trustees to meet and designate one of their number to perform the duties, if the regular clerk is detained from the meeting, or should ride out of the village. The appointment of Chandler, as clerk, pro tem. was made in pursuance of authority obviously belonging to the corporation, and conformable to the practice which has always prevailed in corporations of .this nature ; and it appears that he entered upon the duties of the office. Can it be objected to his proceedings or his records that he was not duly sworn ? We think not, because it is not made a prerequisite to his entering upon the duties of the office. The act of 25 Car. 2, Ch. 2, required all officers, civil or military, to take the oath of allegiance and supremacy, under a penalty. A previous act of 13 Car. 2, Ch. 1., had required the taking of the oaths, and, in default thereof, declared the election void. Yet, notwithstanding the words were so strong, making the election void, it has been holden “ that the acts of one in- “ stalled in office, and executing the same without any objection to his authority, may be valid as to strangers, for “ otherwise not only those who noways infringe the law, but “ those, for whose benefit it is intended, might be sufferers for “ another’s fault, to which they .are no way privy.” Hawk. P. C. 18, §3. If this principle were not adopted, and it were required to show that the clerk was sworn, it might become' necessary also to show that the magistrate or other officer, who administered' the oath, was himself sworn, or that the officer, who certified the appointment of the magistrate, had taken the necessary oaths. We think thp nicety and strictness,- formerly required on such subjects, have given way to more rational views, better comporting with the dictates of common sense and impartial justice. If the clerk himself were justifying, either on a quo warranto, or in an action directly against him, it might be necessary for him to show that he was eligible to the appointment, that it was made, and that he was duly sworn.

3. It appears to us, that in the absence of all record, it might be competent for the defendants to show by parol the proceedings of the meeting. Where there is a record, it cannot be added to or varied by parol, but the-record will be deemed to be evidence of all that was done and that nothing more was done. Thus, in the case of Taylor v. Henry, 2 Pick. R. 403, which was a dispute between a person claiming to be town clerk and his predecessor, there was a record showing a meeting, and also a subsequent meeting, but it did not appear that the first was adjourned. Parol proof was not admitted, that the first meeting was adjourned, for that would be adding to and altering the record. But when there is an omission to make records, the rights of other persons, acting under or upon the faith of a vote not recorded,, ought not to be prejudiced. And it would seem that the right in such case was reciprocal in the corporation and in those who claimed adversely to them'. The reasoning of the court in the case of Bank of the United States v. Dandridge, 12 Wheaton’s R. 64, is to the effect, that, inasmuch as from the fault of an individual whom they could not coerce, and over whom they had not the physical power to compel him to make his records, the higher proof could not be had, nothing but secondary evidence was left in their power, and they might avail themselves of such proof. The result is that upon either of the grounds mentioned, the evidence to prove the voting of the tax was proper and sufficient.

The next inquiry is, whether the tax was legal; and this involves an inquiry as to incidental and implied powers which seems destined to perplex, not only courts of justice, but legislative assemblies, and which, it would seem, can never be definitively settled. There is a tendency at the present day to run into extremes on every subject, and by pushing every argument to the utmost verge, and anticipating events which may, possibly, but without the least probability, happen, endeavor to draw absurd consequences, and, on that account, contend that the argument has no foundation. In theology, the doctrine of predestination has been carried so far as to deny altogether free agency, and the doctrine of free ageney has been extended so as to deny the omniscience of the Almighty. In law, it seems to be considered that, if it can be shown that a power may be abused, it is sufficient to prove that it does not exist. But it is a sound maxim that extremes prove nothing. In authorizing towns, districts or villages to raise money by tax, or to make by-laws, every possible contingency could not be anticipated, in which it would be just or proper to levy a tax. The authority is, therefore, always given in general terms, and the application of those terms, and the cases to which they may apply, are to be learnt, from time to time, as the occasions and exigencies of society may require. Towns are authorized to raise taxes for the support of the poor, for highways, and all other necessary and incidental charges. These words are very general, and under them it has been held that a town might raise money to pay the expense of innocuJating for the kine pock, when the inhabitants had been exposed to the small pox, 2 Vt. R. 427. Also, to defend a law suit in which the town was interested, 6 Vt. R. 95. But if they should, under this authority, attempt to erect an alms house, at an expense of 50,000 dollars, or make a rail road at an expense of 40,000 dollars a mile, no one would contend that the tax would be legal. It is in season to decide whether a power has been improperly exercised or abused, when a case of such improper exercise or abuse is presented. .The act of incorporation authorizes the village to tax themselves, to carry into effect any vote or by-law of the corporation.

4. They have power to enact such by-laws and regulations as they shall deem expedient, particularly such as relate to their streets, side walks and commons, and the shade and ornamental trees thereon. Previously to the passing this act of incorporation, to wit, in the year, 1830, the common had been enclosed by a fence, by individuals, before which time, for about 40 years, it had been open. The act was passed in 1837. The vote, which is now the subject of controversy, was to instruct the trustees to procure stone posts for the repair of the common fence in the village, and to vote a tax of five cents on the dollar on the grand list, a part of which was for this purpose. Neither the probable expense of the fence, nor the tax appears to be exorbitant or extravagant; The by-laws, require the trustees to keep in repair the fence around the common, and to plant such shade trees as they may think proper. There is no' necessity in this case of resorting to the question of incidental powers, as we apprehend the vote and by-laws were directly authorized by the act empowering the corporation to make by-laws relating to their common and the shade and ornamental trees thereon, and to raise taxes to carry into effect any legal vote or by-law, as conducive to, if not necessary for the preservation of the common and the trees thereon.

It is then objected, that enclosing the common with any fence is an encroachment on the highway, and a nuisance. If it is a nuisance, any one may remove it, and whoever erected, or continued it, is liable to indictment, and it would be a subject of regret that it was not noticed before the act of the legislature, incorporating the village, was passed. The common was then enclosed, and the legislature, instead of authorizing the corporation to make by-laws in relation to the common, shade and ornamental trees, would probably have inserted some provision for removing those encroachments. These public squares or commons are not strictly highways. They are public dedications for ornament and for use, and not for travelling with horses or teams. They are like highways in some particulars, that is, individuals cannotJoe permitted to appropriate them to their private use and erect buildings thereon, nor can any vote of a town or village authorize such building. But it by no means follows that they may not be enclosed with a fence, or that trees may not be set out thereon. The argument of the defendant would prove that ornamental or shade trees, inasmuch as they obstructed travelling on the common/ would be an encroachment or nuisance. The purposes, for which these commons are dedicated, do not require nor authorize such a conclusion, but the contrary, and the legislature must have taken the same view, when they mentioned the shade and ornamental trees. Public squares, yards around public buildings, meeting houses, villages and academies frequently require to be enclosed, for the convenience of people on foot, and to prevent the horses, carriages and teams from cutting up the turf or disturbing those who are walking.

We can discover nothing in the vote to rebuild the fence, nor in the act of building such a fence around the common, which violates any existing laws of the state, nor any thing beyond the powers of the village, as established by the act of incorporation, nor any thing in the act of incorporation, which the legislature could not legitimately enact.

The result is, that we adjudge the tax to be legal and the judgment of the county court is affirmed.

Collamek, J., being an inhabitant of the village of Woodstock, did not sit in this case,