62 N.H. 135 | N.H. | 1882
It must be taken, for the purposes of the case, that the defendants built and completed the railroad, relying in good faith upon the vote of the town as originally recorded by the town-clerk, but that the actual vote was as expressed in the amendment of the record allowed by the court. The question of chief importance is, whether the amendment can be properly allowed against the objection of the plaintiffs, and without the defendants consent.
Towns have frequent occasion to transact business which their ordinary officers have no power to perform, and which can be done only by direct corporate action, or by special agents under authority *153
conferred by such action. G. L., c. 37; Underhill v. Gibson,
Direct corporate action must be taken by vote in open town-meeting, and a majority controls. The votes may be so nearly equally divided, that, with or without polling, it is difficult to determine with certainty what is the voice of the town, and the party declared defeated may honestly believe the declaration erroneous, as it possibly may be in fact. Motions and resolutions are not always presented in writing, and they may be amended in various particulars before their final adoption. The exact language in which they are expressed is generally material and important. If, whenever the action of the town is put in issue, it were left to be determined on the testimony of those present at the meeting, in many cases it could never be ascertained with reasonable certainty: the transaction of business dependent upon it would be impracticable, and in all cases the inconvenience would be intolerable. For this reason, among others, the law provides that in every town-meeting there shall be two officers sworn to the faithful discharge of their duties, — a moderator, who is required to "make a public declaration of all votes passed" (G. L., c. 39, 8. 3), and a town-clerk, who is required to "record all votes passed by the town." G. L., c. 40, 8.1. The record made by the clerk is conclusive of the facts therein stated, not only upon the town, but upon all the world to long as it stands as the record. Its accuracy cannot be drawn in question collaterally. It can be contradicted or impeached only in proceedings instituted directly for the purpose, and to the end that it may be corrected. So long as it is in existence, and can be produced, it is the only competent evidence of the action of the town. If it is destroyed or lost, parol evidence may be received to show what it was, but not to prove what the vote was except in so far as such proof may tend to establish the contents of the record. Pickering v. Pickering,
It is immaterial whether the clerk in making the record act as the agent of the town, or as a public officer in the performance of a duty imposed by law. At any time before the rights of third *154
persons have attached, a town may rescind its votes, or the record thereof, if erroneous, may be amended in accordance with the facts; but votes cannot be rescinded to the prejudice of rights which have accrued under them. Mitchell v. Brown,
To permit the record to be altered or amended in accordance with facts found upon the testimony of witnesses, after individuals have dealt with the town and invested their money, or performed labor upon the faith of the vote as recorded, would produce the same mischief as ii no record were required. No one could safely engage in transactions with a town, or with its special agents, without first ascertaining the accuracy of the record. In attempting to do this, the same difficulty would be met as if there were no record. An appeal to the recollection of those who were present when the vote was passed would generally afford the only means by which its truthfulness could be tested. The officers of the meeting might pronounce it correct, but their recollection would be no more authoritative, and might be no more reliable, than that of others. Should every person present be consulted, and concur in declaring the record right, the assurance that it would not be shown to be incorrect when long afterward the town should be called upon to perform its contract might not be materially fortified. They might all be mistaken, and, with memories subsequently refreshed by circumstances, remember that they were mistaken. The possibility of such unanimity, both in the error and in its correction, is doubtless remote; but the mischief arising from the not improbable conflict of recollection would be little less. Men naturally and unconsciously incline to believe what they wish to believe — what it is for their interest that the truth should be. The most intelligent, conscientious, and disinterested witness to long past transactions often finds it difficult, if not impossible, to distinguish inference from recollection, — to separate facts which he comes to by a process of reasoning, from those which he remembers, — and, if his personal interests are concerned, is not unlikely *155
to reach a conviction that he recollects what in truth he only argues or infers from other facts must have existed. For these, and various other causes, the weight of procurable testimony might often be against the verity of the record when brought in issue long after the transaction dependent upon it, although at the time of the transaction its accuracy was confirmed by all the obtainable evidence. In all cases the essential element of certainty would be wanting. Although the town's recorded vote should authorize the selectmen or special agents to borrow money, to employ counsel, or to buy or sell a town farm; should provide for the funding of its debt, the establishment of a library, park, or cemetery, the publication of an early history of the town, the erection of a monument, or for any other thing within its power (Gen. Laws, c. 37), — no one could lend his money, act as counsel, buy of or sell to the town a farm, publish a town history, erect a monument, or render other services apparently warranted by the vote, with a certainty that he could hold the property he bought, recover the money he lent, the stipulated consideration for the property he sold, or compensation for his services, and by no care and prudence on his part could he make it certain. After the most painstaking and exhaustive examination in his power to make, his rights would still depend on the uncertain result of a future judicial finding of what the town's vote actually was, to be made necessarily upon the direct testimony of more or less hostile witnesses, in connection with the evidence afforded by surrounding circumstances, and finally determined by a balance of the probabilities. Such a state of things would be as damaging to the corporations as to the individuals dealing with them; as detrimental to the public welfare as to private rights. Saxton v. Nimms,
When a town by its corporate vote makes an offer or proposition, to be accepted or rejected by a person at his pleasure, substantial reasons might be given for requiring it to see, at its peril, that the proposition is correctly stated in the record, and for holding that after the recorded offer is accepted and acted upon the town is estopped from amending it, or from availing itself of an amendment made according to the fact. New Havenc. Railroad v. Chatham,
The building and completion of the railroad upon the faith of the recorded vote, and according to its provisions, constituted a contract executed on the part of the defendants, as where a reward is offered upon certain conditions, and an individual relying upon the offer performs the conditions. Janvrin v. Exeter,
In Chamberlain v. Dover,
The position, that the vote as recorded could not be taken under the article in the warrant; that the town could only vote to dismiss it, or to give a greater or a less per cent. of its valuation upon the precise conditions and limitations expressed in the article, — cannot be sustained. The statute requires that "the subject-matter of all business to be acted upon shall be distinctly stated in the warrant." G. L., c. 38, 8. 2. The purpose of the requirement is to inform the inhabitants of the business upon which they are called to act in the meeting, — "to bring before the town substantially and intelligently the subject with which it has to deal." Tucker v. Aiken
It is urged that the language of the article in connection with that of the vote was of itself sufficient to put the defendants upon inquiry, and that they are therefore chargeable with notice of the error in the record. It is not perceived how anything contained in the article could naturally or legitimately tend to show, or lead to a suspicion, that the record of a vote which could lawfully and properly be taken under it was erroneous; how the absence in the record of a clause in the article, which for good reasons might properly be rejected, is calculated to lead to the inference that it was erroneously omitted. The recorded vote provided for the gratuity in case the road should be completed in a reasonable time, which might be longer or shorter than the time mentioned in the article. It was# the same in legal effect as if the words "to be completed in a reasonable time" had been added to the record. For adopting this limitation rather than that specified in the article, or any other fixed and definite time, the town might have satisfactory reasons. It was not so extraordinary, unreasonable, or unnatural action as upon its face to excite suspicion that it could not have been taken. *159
It is suggested that the granting of the amendment rested in the discretion of the presiding justice who allowed it, and that the question of discretion is not reserved and cannot be revised. Whether upon the facts stated the amendment can be allowed, is a question of law; if it can, whether justice requires that it should be, is a question of fact to be determined at the trial term. The first question only has been considered.
Motion for rehearing denied.
STANLEY, J., did not sit: BLODGETT, J., dissented: the others concurred.