Middlebury, New Haven & Bristol v. Rood

| Vt. | Jan 15, 1835

The opinion of the court was delivered by

Mattocks, J.

The question in this case is, whether the selectmen had competent authority to receive the money and discharge the debt; and this involves in the first place the question, whether they have such a general power or authority by virtue of their office, and secondly whether they had it under the, circumstances of this particular case.

It is not known that there has been any particular decision that reaches the first branch of the question. In Angell vs. Pownal, 3 Vt. Rep. 61, it was decided that the selectmen could not, without a vote of the town, discharge the interest of a witness, but that was a discharge without payment. In Connecticut, where the statute, as it relates to the duties of selectmen, is very like ours, it has been decided that they cannot, without a vote of the town, commence or refer a suit, nor accept of an award and satisfaction. But whether they can receive the money and cancel the debts due to the town, has hitherto been undecided. That it is the appropriate duty of the town treasurer to keep and receive the monies of the town, and that payment to him is payment to the town, there is no doubt; and the statute requiring him who is to keep, and the collector who is to gather the money, to give bonds, and it being required of no other town officer, affords a strong argument that these two and no others were intended to be made the fiscal officers of the town. For this there would seem to be good reasons. It is but the common precaution in relation to most corporations, public or private. The selectmen may be discreet fathers of the town, yet be or become poor. They are not, like a president of a bank, appointed for their wealth; and if one set should happen to be defaulters, the next might collect it of them, and not pay to the treasurer, and so indefinitely, before the money would arrive at its final destination; and although it would be rare that they would squander town money, yet where the funds are considerable, if they could control them, it might happen; and unless the law by fair implication at least gave them the right contended for, it would be more safe not to decide that they have it.

The statute relating to town meetings directs that three or more persons, not exceeding five, be appointed as selectmen, “ to superintend the prudential affairs of the town,” and who are to be overseers of the poor, if none others are appointed; and in various statutes particular acts and duties are required of them as select-anc| overseers of the poor; but among these, it is believed, that of prosecuting or defending suits, or of collecting or receiving money, is not to be found. Suits are directed to. be prosecuted or defended by agents appointed by vote of the town, and all suits where by law an action had been given to the selectmen, among others, are by the act of 1817 directed to be brought in the name of the town, depriving them from being even nominal parties. The act for the support of schools indeed appoints the selectmen, and a trustee to be appointed by the town, trustees of schools, with power to lease lands and lend the money; but this is a distinct board from the selectmen merely, with particular powers conferred; and this being the only instance in which the selectmen, even with another, are entrusted with the abiding care of funds, and in this case there being a standing trustee joined with them, is rather an argument against them for the power of the selectmen, as such, to receive money. But it is insisted, that this power is conferred by the words, “ to superintend the prudential affairs of the town.” This general purpose of their appointment is contained in the very clause directing them to be appointed, and afterwards particular acts and duties are enjoined. Perhaps these specified duties may be regarded as what is meant by “ prudential affairs.” If not, the broadest construction would seem to comprehend no more than all those undefined acts and doings that are necessary and convenient to have done in the management of the affairs of the town, which it is not made the duty of other officers to do — every thing that is no one’s business in particular to do — that is, to do the chores of the town. But it is the proper business of the treasurer to receive and keep the cash of the town; and therefore it is not comprehended by this general expression.

We think, therefore, that the power in question is not given to the selectmen, either expressly or by necessary implication, and therefore they have it not.

There is nothing in this case, that will distinguish it, favorable to the defendant. It does not appear, that the selectmen of any of these towns took the note which was sued, or ever had any actual agency in the matter; but the suit was prosecuted by a special agent appointed by the town of Bristol, and after final judgment, and the money had been collected upon the execution of the defendant, the sheriff, in lieu of paying the money over to the attorney or agent, saw fit to pay it to the selectmen of these towns. There is no doubt but that there may be cases in which, when the selectmen having been entrusted by the town to take or hold securities, the receiving the money upon them and giving them up to be cancelled, would be an extinguishment of the debt. But here was no implied agency. Their interference was entirely gratuitous, and intended to be official, and it not being within the scope of their general authority, the discharge they gave was of no effect.

Judgment of county court is reversed.