Stuart v. Town of Warren

37 Conn. 225 | Conn. | 1870

Butler, O. J.

We assent to the objection of the respondents that there was no action of the town at the meeting on the 6th of August, 1863, which imposed upon them any liability to Dugan. There is no pretence that the record of the proceedings was not full and truthful, and if it was not the remedy of the petitioner in that respect would have been an application for a mandamus; to compel the cleric to perfect or correct his record. No vote was passed at that meeting showing the intention of the majority to give the gratuity of $250 to each drafted man, as claimed. A motion to amend is often carried by the votes of those who are opposed to the original resolution, with a view to disaffect its friends, and the resolution which it was voted to amend had been rejected and could not he amended without a reconsideration. Nor was the vote to amend the original resolution in any manner affected by the proceedings of the meeting of August 15th. That was an independent meeting, and its action entirely independent in character and effect.

We assent also to the objection of the respondents that the petitioner can take nothing by his bill by force of the vote of August 20th, 1864. That claim of the petitioner is clearly obnoxious to the objections urged against it by the respondents. The gift of the bounty by the vote was a gratuity, and besides the vote was afterwards rescinded. But we are all of opinion that the petitioner is entitled to relief under the vote of August 15th, 1863, and that the objections urged’ by the respondents ought not to prevail.

First, because ’the petitioner can have such relief under the general prayer for relief, or by the amendment of his bill. Second, because the vote of August 15th was validated by the act of July, 1864, notwithstanding the defective warning. We have so holden heretofore, in relation to an act less absolute in its terms than that of July, 1864. Baldwin v. North Branford, 82 Conn., 47. Third, because our construction of the act of July 6th, 1864, was different from that now urged by the respondents in Bartholomew v. Harwinton, 33 Conn., 408, and we are satisfied with that decision upon the point. See also the case of Potter v. Town of Canaan, decided this term. (Ante, page 222.)

Eor these reasons we are of opinion that Duganwas within the purview of the vote of August 15th, 1863, and that that vote was validated and made binding upon the town by the act of July 6th, 1864.

We attach no-importance to the objection that no demand was made by the petitioner and Dugan for the sum of $250 under the vote of August 15th, 1863. The town was made acquainted with the fact that they had a claim against the town by their demand under the vote of August 20th, 1864, and the objection is purely technical.

For these reasons we advise the Supei’ior Court to grant the prayer of the petition and pass a decree in favor of the petitioner for the amount to which Dugan was entitled by the vote of August 15th, 1863.

In this opinion the other judges concurred; except Seymour, J., who having been consulted in the case when at the bar, did not sit.