Jackson v. Inhabitants of Hampden, 20 Me. 37

Jackson v. Inhabitants of Hampden

20 Me. 37 | Me. | 1841

The opinion of the Court was delivered by

Shepley J.

When this case was before the Court on a former occasion, 16 Maine R. 184, it was decided, that all the members of the superintending school committee being notified, that they might have the opportunity to take part in its deliberations and decisions, a majority might perform the duties. And that notice should be given, although a member might then be absent from home. The proceedings of the committee then under consideration had reference to the discharge of the teacher ; those now presented respect his qualifications. Ac*40cording to the principles of the former decision, the certificate produced signed by a majority of the committee, would not be sufficient if it appeared, that the other member was not notified. The fact that the teacher presented himself at the office of the other member and offered himself for examination cannot aid him. If all the members should neglect or even wantonly refuse to examine a person, he would not be authorized to teach and to recover his wages without the required certificate. The production of it is an indispensible prerequisite to a legal employment. Nor could the certificate of Mr. Hamlin of a former year be received. It was not given in the character of a member of the committee. It is the certificate of the then existing committee, which is required. The case does not present any facts, from which a waiver of legal rights can properly be inferred. The town could not dispense with any of the provisions of the statute or deprive any member of the committee of the right to be informed of its proceedings. Nor does a member waive his right to be notified by being absent. Notice to each member is not required so much to secure a private right as the proper performance of a public duty.

It is insisted, that the offer to be defaulted is an admission of the contract declared on. The statute, c. 165, <$> 6, by virtue of which the offer was made, does not appear to have been designed to afford the plaintiff any advantages, beyond what he might derive from the offer itself. The reasons upon which the rule was established, that a tender of a part admits the contract stated in the declaration, do not apply to an offer to allow the plaintiff to take judgment for a certain sum. Such offer may be made to avoid the risk of costs, where there may be a chance for the recovery of nominal damages or a small amount, where the defendant thinks that there is nothing due. The act determines the effect, that the offer is to have upon the rights of the parties ; and to decide, that it admitted the contract, would be to change that effect, and to defeat in a great degree the design of the act.

It does not distinctly appear from the case, that the other *41member of the committee was not notified; and the certificate of a majority may be regarded as prima facie evidence, that they have performed their whole, duty as well in notifying those who do not sign, as in making the necessary examination. Downing v. Rugar, 21 Wend. 178. In the absence of proof that notice was not given to the other member, the certificate should have been received.

But when received the effect of it will be destroyed by proof, that he was not notified by the majority or by their order. It was stated at the argument, that no such notice was given and if such should prove to be the fact, the plaintiff can recover only the amount, for which the defendants offered to be defaulted.

Exceptions sustained.