Waldo v. Town of Portland

33 Conn. 363 | Conn. | 1866

Butler, J.

1.‘ In this case we are satisfied that all the votes passed at the meeting of September 30, 1863, were ratified and made legal and binding upon the town by the act of November 13,1863, and the ratification of August 13, 1864, the temporary injunction notwithstanding. It is not necessary to assign our reasons at length. The whole subject, and every question involved here, were fully discussed in some ox-all of the cases hex-etofore decided in this court, of Booth v. Woodbury, Baldwin v. North Branford, and Webster v. Harwinton. It is sufficient to say that the injunction did not make them any more illegal and invalid than they would have been if it had not been granted.

2. Nor can the objection that the order was not signed byr all the committee prevail. It was signed by all who accepted the appointment and consented to act, and they constituted the committee. Moreover, within the principles recognized by this court in Gallup v. Tracy, 25 Conn., 10, a majority could act, and those who signed were a majority of those appointed.

3. The fact that the town was under injunction not to pay, is no defence to this action. The original temporary injunction was superseded by a permanent one, obtained by a new board of selectmen collusively, after the votes were ratified, and when it was the duty of the town to procure a dissolution of the temporary injunction, and fulfill the obligation assumed. That permanent injunction, thus obtained, although operative upon individual officers until dissolved, cannot defeat or affect the liability of the town to the plaintiff, nor his right to a judgment. The court on application will dissolve it at once.

4. Button paid his commutation to the government on the faith of the order in question,- and with that payment, presumptively, the government procured a substitute to serve in his place. The promise of the town, for such in effect was the transaction, that if drafted and if he served or paid his commutation, they would reimbux’se him to the amount of the order, was presumptively made in aid of a great public pux’pose, involving the general welfare, and xipon sufficient consideration; and having beexx acted upon, it caix not now be repudiated, either as to Button or the plaintiff as his assignee.

We advise judgment for the plaintiff.

In this opinion the other judges concurred.