A town in Connecticut cannot make a contract, or authorize any
officer or agent to make one in its behalf, except by vote of the
inhabitants at a meeting warned by publicly posting a notice
specifying the subject of the vote, and anyone who relies upon a
vote as giving him rights against the town has the burden of
proving such a notice although the selectmen and town clerk have
neglected their duty of filing and recording the notice and
although the record of the meeting states that it was "legally
warned."
The property of any inhabitant of a town in Connecticut may be
taken on execution upon a judgment against the town.
Page 121 U. S. 122
Neither the selectmen nor the treasurer of a town in Connecticut
have general power to make contracts, to borrow money, or to incur
debts in behalf of the town.
The reports made to an annual meeting of a town in Connecticut
by the selectmen and treasurer, as required by statute, are not,
unless acted on by the town, evidence to charge it with debts which
those officers had no authority to contract in its behalf.
A promissory note, made by the treasurer of a town in
Connecticut to a bank, of which he has borrowed money without the
knowledge of the town, does not bind the town unless authorized or
ratified by a vote of the town at a meeting warned for the purpose,
and is not made valid, nor the town estopped to deny its
invalidity, by the acceptance at an annual meeting of the reports
of the selectmen and treasurer showing various sums paid to other
persons or received "on town notes," and an "indebtedness of the
town by notes" or by a vote at a subsequent meeting, duly warned,
authorizing the selectmen to pay certain notes made by the
treasurer to other persons, and by the selectmen's paying those
notes accordingly.
This action was brought June 5, 1880, by a national bank against
the Town of Bloomfield in the State of Connecticut upon three
promissory notes dated June 20, June 21, and July 1, 1879, and
payable three months after date, for the aggregate sum of
$19,433.30, and all alike in form, the first being as follows:
"Hartford, June 20, 1879. $5500. Three months after date, The
Town of Bloomfield promise to pay to the order of S. J. Mills
fifty-five hundred dollars at Charter Oak National Bank. Value
received."
"S. J. MILLS, Treasurer"
The answer denied that the defendant made the notes, or that
Mills, as its treasurer, had authority to make them in its
behalf.
A trial by jury was had, resulting in a verdict for the
plaintiff in the full amount of the notes and interest, and a bill
of exceptions was tendered by the defendant and allowed by the
court, so much of which as is material to be stated was as
follows:
The Town of Bloomfield was incorporated in the usual manner of
Connecticut towns, by a resolve of the Legislature of Connecticut,
in May, 1835, by which the inhabitants of the
Page 121 U. S. 123
town, and their successors forever, residing therein, "shall
have and enjoy all the powers, privileges, and immunities which are
enjoyed by other towns in this state." It was admitted that Mills
was elected treasurer of the town on October 5, 1868, and was
reelected annually, and acted as treasurer until July 16, 1879,
when he resigned, and that he made and signed the notes in suit,
and endorsed them to the plaintiff. The defendant objected to the
admission of the notes in evidence, because the plaintiff had shown
no authority from the defendant to Mills to borrow money or execute
notes. But the court, against the defendant's objection and
exception, admitted the notes "subject to the duty of the plaintiff
to prove such authority."
The plaintiff then offered in evidence a copy, certified by the
town clerk, February 16, 1877, of the record of this vote of the
town:
"At an annual town meeting, legally warned and held at the usual
place, October 5, 1868, S. J. Mills, moderator; H. W. Rowley,
assistant town clerk, voted that hereafter the town treasurer be
authorized and empowered to borrow money for the use of the
town."
The defendant objected to the admission of this vote because the
plaintiff offered no evidence that the warning of that meeting
specified any such object as was contained in the vote. It was
admitted that the warning had not been recorded by the town clerk,
and was not on file in his office.
The court overruled the objection and admitted the vote in
evidence
"not as showing a legal or valid vote of the town, but subject
to the duty on the part of the plaintiff to prove that the town at
its meetings, by its affirmative acts and conduct, had assented to
and treated as authoritative the power of the treasurer under said
vote to borrow money for the use of said town, or for the purpose
of establishing that by the course of conduct of the town in its
town meeting, it had practically established the authority of the
treasurer under said vote and of establishing an estoppel
in
pais against the power of the town to treat as invalid a vote
the validity of which
Page 121 U. S. 124
had been affirmatively declared by its acts if it should appear
that the defendant had intentionally caused the plaintiff to
believe in a state of facts which it now claims not to exist and
induced it to act on such belief."
To this ruling the defendant excepted.
The plaintiff thereupon,
"for the purpose of proving that the town had made the said
Mills its general agent in fact to borrow money, and had at its
town meetings, and by its affirmative acts in said meetings,
treated the treasurer as authorized under said vote to borrow money
for the town,"
offered the following evidence:
"1st. Forty-four notes, for the aggregate sum of more than
$64,000, made by Mills as treasurer, in behalf of the town, to
sundry persons, other than the plaintiff, and mostly citizens of
Bloomfield, between the times of the passage of that vote and of
his resignation, all of which bore endorsements of payments of
interest, and had been paid and taken up."
"2d. Copies of the annual printed reports made by the selectmen
of the town, together with the treasurer's annual reports, to the
annual town meetings from 1869 to 1878 inclusive, and the records
of the town meetings, showing the action of the town thereon."
The reports of those officers, in 1869, showed sums paid for
"interest on town notes" to sundry individuals named, $1,507, and
to two of them, for "town notes taken up," $1,646.58; "indebtedness
of town by notes, $27,100;" and "amount received on town notes
$6,559.88." The reports in the subsequent years showed similar
items, varying in amount, and the "indebtedness of the town by
notes" gradually increasing to $48,416.28. It was admitted that the
sums paid for interest included the payments of interest on the 44
notes aforesaid.
The records of the town meetings showed that at an adjournment
of the annual meeting of 1868 it was "voted that the selectmen be
directed to have the report of items of account printed yearly, 500
copies;" that at the annual meeting in 1869, the reports of the
selectmen and treasurer were "read and accepted;" that in 1870,
"the reports of selectmen and
Page 121 U. S. 125
town treasurer, being in printed form, were not called for;" and
that there was no record of any action of the town at the
subsequent meetings with reference to such reports. But it was
admitted that the printed reports were in fact distributed to all
who attended those meetings.
"3d. A vote of the town, passed at a special meeting, duly
warned and held May 29, 1880, authorizing the selectmen to make and
deliver notes in the name and behalf of the town to take up and
cancel 'certain memoranda of indebtedness, signed by the selectmen
or other officers of said town, and all bearing date July 1, 1879,'
for money lent to the town and unpaid; also evidence that, in
pursuance of this vote, the selectmen took up twenty notes, some
signed by Mills as treasurer and others both by him as treasurer
and by the selectmen, amounting in all to $45,184, and given by him
in their presence on July 1, 1879, to various persons, in renewal
of or substitution for notes which he had previously given to them,
and that these notes were afterwards taken up and paid by the
selectmen."
The defendant objected to all this evidence as irrelevant and
immaterial, but the court admitted it for the reasons above stated,
and the defendant excepted to its admission.
The bill of exceptions proceeded as follows:
"The plaintiff's account with Mills as such treasurer commenced
in March, 1871, and continued until July, 1879. The first note
which he procured to be discounted as such treasurer was discounted
on March 24, 1871, and thereafter he continuously obtained
discounts and renewals of old notes until the date of the last
note, when the three notes in suit were outstanding. The aggregate
of his account was over $250,000."
"In this account he deposited moneys of the town, and, without
the knowledge of the plaintiff, small amounts of his own, and
checked out from said account, both for the use of the town and,
without the knowledge of the plaintiff, small amounts for
himself."
"The plaintiff offered evidence and attempted to trace each note
in suit, so as to show that nearly the whole amount of the proceeds
of said notes went to the use of the town, and that
Page 121 U. S. 126
nearly all of the checks drawn against said proceeds were given
to inhabitants of the town in payment of town orders given by the
selectmen. But no evidence was offered to show that the town, in
its town meeting assembled, knew that Mills kept his bank account
with the plaintiff or that he was borrowing the money represented
by these notes, or those of which these were renewals, of the
plaintiff."
"The plaintiff disclaimed any advantage by virtue of being
endorsee of the notes, rather than payee, and did not claim that it
stood on that account in any other relation to the defendant than
if it had been the payee."
"The plaintiff also offered evidence which the defendant claimed
showed that at the time when the plaintiff first obtained a copy of
said vote of October 5, 1868, from the town clerk of said town,
viz., on February 22, 1877, all the moneys represented by
the notes in suit had been advanced to said Mills, treasurer,
except the sum of $1,500, and the notes in suit, except so far as
said $1,500 was concerned, were renewals of notes made before said
date, and before the plaintiff knew of said vote from the record
itself. The plaintiff denied the validity of said claim."
"It sufficiently appeared from the evidence in the case that the
plaintiff supposed or thought that Mills was authorized to borrow
money for the use of the town and give its notes therefor, from the
commencement of the account of the plaintiff with Mills as such
treasurer."
"There was no other evidence in regard to any affirmative acts
of the town in its town meetings assembled which would constitute
an agency in Mills or raise an estoppel against the town, other
than those which are hereinbefore contained, and this comprised all
the evidence in the case in regard to estoppel, ratification, or
agency, the court having confined the plaintiff in its testimony to
acts of the town in town meetings, and excluded any acts or
knowledge of the selectmen."
The plaintiff thereupon rested its case, and the defendant again
objected to the admission in evidence of the notes sued on and the
vote of October, 1868, on the grounds above stated; also on the
grounds
"that no sufficient evidence had
Page 121 U. S. 127
been offered to prove a ratification by the town of the said
vote or to establish any estoppel against the town which would
prevent it from setting up the invalidity of said vote, or, in
connection with said vote, to prove a general authority given by
the town to Mills to borrow money for the town, and give notes
therefor, sufficient to make the town liable on the notes in
question; . . . that the town, as a municipal corporation, had no
inherent power to borrow money or give notes therefor, nor had any
special authority therefor been proved; that even if it had such
power, it could only exercise it by a vote specifying objects for
borrowing money which were within the duties of the town to
perform, and limiting the amount so to be borrowed, and that, even
if the town had such power, it could not delegate to its treasurer
power to borrow money, unlimited either in object or in amount; . .
. that, by proper construction of said vote, it did not authorize
any person who might thereafter be treasurer to borrow any sum of
money which he might think fit and make the town liable therefor,
and did not authorize Mills to borrow the money and give the notes
in question;"
and
"that, even if the town had given authority of Mills to borrow,
it had not given him power to give negotiable promissory notes like
those in suit for the money so borrowed."
But the court overruled the objections and admitted the notes
and the vote in evidence, and to this ruling the defendant
excepted.
The defendant introduced evidence tending to show that the
warning of the town meeting of October 5, 1868, did not in fact
contain any notice that the matter of authorizing the treasurer to
borrow money would come before the meeting, and also evidence
tending to show that Mills, during all the time from 1868 to 1879,
was largely in default to the town, having embezzled large sums of
money belonging to the town, in addition to the sums obtained by
him from the plaintiff, and that the moneys obtained by him from
the plaintiff were not used to pay debts of the town, or, if so
used in part, only to pay debts for the payment of which the town
had furnished him sufficient money, which he had embezzled
Page 121 U. S. 128
as aforesaid, and so were in fact obtained and used by him for
his own purposes, to cover such embezzlement.
The defendant also put in sundry votes passed by the town in
1862, 1863, and 1864 authorizing the selectmen to borrow money to
pay bounties to soldiers, and to give orders on the town treasurer
or notes of the town therefor, which votes has been ratified and
confirmed by the Legislature of Connecticut before the town meeting
of October 5, 1868, as well as evidence that at the meeting of May
29, 1880, and before the passing of the vote above mentioned, one
of the selectmen read to the meeting a list of the notes signed by
Mills as treasurer, either alone or with other officers of the
town, which contained no notes given by Mills to the plaintiff.
Before the charge to the jury, the defendant renewed its objections
by requests for instructions, which the court refused to give.
The court instructed the jury that in the absence of all
testimony, there was no presumption that the warning of the town
meeting of October 5, 1868, specified the subject of giving
authority to borrow money, and that the vote of that meeting,
"standing alone, did not give general authority to borrow money,
and to act as general agent in that regard;" but submitted the
evidence in the case to the jury as sufficient to authorize them to
find that the defendant, by continuous and affirmative action and
conduct in its town meetings, knowing that its treasurer had
generally and freely borrowed money and given notes under that
vote, had made him in fact its general agent for that purpose, had
held him out to the plaintiff as such, and had ratified his acts,
and was estopped to deny their validity.
The defendant excepted to the refusal to instruct as requested,
and to the instructions given, and sued out this writ of error.
Page 121 U. S. 129
MR. JUSTICE GRAY, after stating the case as above reported,
delivered the opinion of the Court.
We have not found it necessary to consider how far a town in
Connecticut has the power to give promissory notes because, in our
opinion, the evidence in this case is incompetent to prove that
this town ever authorized its treasurer to make the notes in suit
or did any act which made them binding on the town. Towns in
Connecticut, as in the other New England states, differ from
trading companies, and even from municipal corporations elsewhere.
They are territorial corporations into which the state is divided
by the legislature from time to time at its discretion for
political purposes and the convenient administration of government.
They have those powers only which have been expressly conferred
upon them by stature or which are necessary for conducting
municipal affairs, and all the inhabitants of a town are members of
the
quasi-corporation. 1 Swift's System 116, 117;
Granby v. Thurston, 23 Conn. 416;
Webster v.
Harwinton, 32 Conn. 131; Dillon Mun.Corp. §§ 28-30.
In Connecticut, as in Massachusetts and Maine, by common law or
immemorial usage, the property of any inhabitant may be taken on
execution upon a judgment against the town.
Atwater v.
Woodbridge, 6 Conn. 223, 228;
McLoud v. Selby, 10
Conn. 390;
Beardsley v. Smith, 16 Conn. 368; 5 Dane Ab.
158;
Chase v. Merrimack Bank, 19 Pick. 546, 569;
Gaskill v. Dudley, 6 Met. 546;
Adams v. Wiscasset
Bank, 1 Greenl. 361;
Fernald v. Lewis, 6 Greenl. 264.
See also Hopkins v. Elmore, 49 Vt. 176; Rev.Stats.N.H.
1878, c. 239, § 8.
A town cannot make a contract or authorize any officer or agent
to make one in its behalf except by vote in a town meeting duly
notified or warned, and the notice or warning must specify the
matter to be acted on, in order that all the inhabitants (whose
property will be subject to be taken on execution to satisfy the
obligations of the town) may know in advance what business is to be
transacted at the meeting.
Page 121 U. S. 130
If the subject of the vote is not specified in the notice or
warning, the vote has no legal effect, and binds neither the town
nor the inhabitants. No one can rely upon a vote as giving him any
rights against the town without proving a sufficient notice or
warning of the meeting at which the vote was passed.
Reynolds
v. New Salem, 6 Met. 340;
Stoughton School District v.
Atherton, 11 Met. 105;
Moor v. Newfield, 4 Greenl.
44; Dillon Mun.Corp. §§ 266-268.
Upon this point the statutes and decisions of Connecticut are
perfectly clear. The statutes require the annual town meetings to
be held in October, November, or December, and permit special
meetings to be convened when the selectmen deem it necessary, or on
the application of twenty inhabitants qualified to vote in town
meetings, and provide for notifying or warning both annual and
special meetings as follows:
"When town meetings are to be held, a notification, either
written or printed, specifying the objects for which they are to be
held, signed by the selectmen, or a majority of them, set upon the
sign-post or sign-posts in the towns at least five days inclusively
before the meeting is to be held, shall be sufficient notice to the
inhabitants to attend such meeting."
Rev.Stats. 1866, tit. 7, §§ 19, 21; 1821, tit. 103, § 2. They
also provide that
"The warning of every meeting of any borough, city,
ecclesiastical society, school society, school district, or other
public community shall specify the object for which such meeting is
to be held."
Rev.Stats. 1866, tit. 7, § 232.
Whenever a town meeting is warned agreeably to the provision
above quoted, the statutes, with a view to preserving the best
evidence of the contents of the notice or warning, make it the duty
of the selectmen to cause a copy or duplicate thereof to be left
with the town clerk before the meeting, and the duty of the clerk
to record it. Rev.Stats. 1866, tit. 7, § 19. But these duties are
imposed on the selectmen and the clerk as public officers, not as
agents of the town. They are not made duties of the inhabitants of
the town in their corporate capacity, but official duties of those
charged with their performance. The neglect of the officers to file
or record a sufficient
Page 121 U. S. 131
notice of a town meeting is theirs only, and not the neglect of
the town. So far as the town is concerned, the utmost effect of an
omission to record the notice is to authorize its contents to be
proved by other evidence.
Brunswick First Parish v.
McKean, 4 Greenl. 508.
The annual election of town officers, or any other act which the
statutes require to be done by the inhabitants at each annual
meeting, might perhaps be sufficiently proved by the record of what
was done at the meeting, without proving a special notice of it in
the warning.
Thayer v. Stearns, 1 Pick. 109;
Gilmore
v. Holt, 4 Pick. 258. But, with those exceptions, such a
notice is a necessary prerequisite to the validity of any act of
the town, either at the annual meeting or at a special meeting. The
statutes, for instance, provide that "the inhabitants of the
respective towns, in legal meetings assembled, shall have power" to
make certain bylaws for the welfare of the towns. Rev.Stats. 1866,
tit. 7, § 31; Rev.Stats. 1821, tit. 101, § 6. But it has always
been held that no bylaw, though passed at an annual meeting, is
valid without a previous notice thereof in the warning.
In the leading case, decided in 1824, of
Hayden v.
Noyes, 5 Conn. 391, where the annual meeting of a town was
warned to choose town officers, "and to do any other business then
thought proper by said meeting," the Supreme Court of Errors
decided that bylaws passed at that meeting, to regulate the shell
fishery of the town, were void, and Chief Justice Hosmer,
delivering judgment, said:
"By the act concerning towns, the mode of warning town meetings
is specially prescribed. There is to be a notification in writing,
'specifying the objects for which they are to be held,' signed by
the selectmen, and set upon the public sign post or posts in the
town at least five days before the meeting. A meeting not warned
agreeably to the mode designated is no legal congregation of the
town, and its acts in that capacity are void. If the object be to
regulate the clam and oyster fisheries, that object must be
specified in the warning in an intelligible manner. A notification
to assemble a town meeting for a lawful purpose, duly specified,
and
to do other
Page 121 U. S. 132
town business, is, except as to the specification, as
entirely exceptionable as if the town were warned to meet and do
any business they should think proper. It is the purpose of the law
not to prescribe a frivolous form, but to give substantial
information. If the object of the meeting is specified, it will
present a motive to the inhabitants to be present, and they will
leave business, even if it be pressing, provided they feel an
interest in the subject to be determined. On the other hand, if the
subject is unimportant, and any of the inhabitants should feel no
concern in the result, they may with safety pursue their ordinary
business, and this certainly is matter of convenience. . . . The
warning, in the case before us, neither conforms to the words nor
spirit of the law, and, if sanctioned, would repeal the
statute."
5 Conn. 395, 396.
In a similar case, in 1830, that decision was followed, and it
was adjudged, reversing the judgment of a lower court, that it was
incumbent on the party offering the vote of the town in evidence,
and seeking to avail himself of it, to prove that the meeting was
duly warned, although the vote purported on its face to have been
passed by the town "in legal meeting assembled," and the court
said:
"The borough and the town are confessedly inferior corporations.
They act not by any inherent right of legislation, like the
legislature of the state, but their authority is delegated, and
their powers therefore must be strictly pursued.
Within
the limits of their charter, their acts are valid;
without
it, they are void. It having been established, in the case of
Hayden v. Noyes, above cited, that to render an act of a
town precisely of this character valid, it must appear that the
meeting of the town had been specially warned for that purpose, and
this not appearing on the doings of the town in this case, nor from
any proof
aliunde to establish the fact, the judgment is
erroneous. Perhaps it should appear on the face of the proceedings,
but at least he who seeks to enforce the act should prove such
warning to have been given."
Willard v. Killingworth, 8 Conn. 247, 254.
There is nothing in the later decisions of that court which
tends to shake the rules thus established.
In
Brownell v. Palmer, 22 Conn. 107, the vote of the
town,
Page 121 U. S. 133
which was presumed to be valid without proof of the warning, was
a vote passed at an annual meeting twenty-five years before,
accepting a discontinuance in due form by the selectmen of an
ancient highway, which was proved to have been disused ever since
some time before that vote, and which there was strong ground
therefore for presuming to have been discontinued.
See Avery v.
Stewart, 1 Cush. 496;
Fletcher v. Fuller,
120 U. S. 534. In
the case of a recent vote, the rule is otherwise. For instance, in
State v. Taff, 37 Conn. 392, a vote of a town fifteen
years before, accepting the laying out of a highway by the
selectmen, was held insufficient for want of any proof of the
warning, and the highway was established upon the independent
ground of dedication.
In
Isbell v. New York & New Haven Railroad, 25
Conn. 556, the town clerk's record of the meeting at which the
bylaw in question was passed recited that the meeting was "legally
warned and held for the purpose of making a bylaw" upon the
particular subject, and the case was thus reconciled with that of
Willard v. Killingworth, above cited. The record made by
the clerk in the performance of his legal duty was sufficient, and
perhaps conclusive, evidence of the fact recorded.
Thayer v.
Stearns, 1 Pick. 109.
In
Society for Savings v. New London, 29 Conn. 174, the
sufficiency of the warning was not questioned.
In
Baldwin v. North Branford, 32 Conn. 47, a vote
passed upon an insufficient warning, and therefore invalid, was
upheld because it had been ratified by the town at a subsequent
meeting, duly warned, and held under a confirmatory act of the
legislature.
The two remaining Connecticut cases cited at the bar were suits
to compel towns to guarantee the bonds of a railroad corporation in
accordance with votes passed under authority conferred by
statute.
In the one, the vote was passed at a meeting duly warned and
held, and the decision was that the vote, as recorded by the town,
taken in connection with the warning, which was also recorded,
appeared to have been taken by ballot, as required by law, and that
the town was estopped to show, by an
Page 121 U. S. 134
amendment of the record, made after the railroad corporation and
its contractors had acted upon the vote for three years, that the
vote was not so taken.
New Haven, Middletown & Willimantic
Railroad v. Chatham, 42 Conn. 465. The case is an exceptional
one depending on its peculiar circumstances. Dillon Mun.Corp. §
164, note.
But in the other case, in which the warning, as recorded, showed
that it had been posted less than the requisite number of days
before the meeting at which the town voted to guaranty the bonds on
certain conditions, it was adjudged that the vote was invalid and
that the town was not estopped to prove the defect in the warning,
and the consequent in validity of the vote, by a recital in the
record that the vote was passed at a meeting "legally warned and
held," or by subsequent proceedings, after the railroad corporation
had substantially complied with those conditions, by which the
town, under a warning to determine what disposition should be made
of the bonds of the railroad corporation held by the town, and to
pay interest on its bonds, and to take such action as to secure the
completion of the railroad, voted to let the conditions of the
former vote remain as they were. The court said "The assembled
voters are with out power to act for or bind the town unless they
have been called together in the statutory way and at the statutory
time," and also, after observing that "every voter who read the
call" for the second meeting, "might safely absent himself from the
meeting in the certainty that under the call, it could not impose
the burden of a guaranty upon the town," added:
"We cannot order the town to guarantee any bonds unless it is
made clear that at a lawful meeting, so called as to give the
voters full knowledge of its purpose, they have assumed the burden;
it is not to be placed upon them by inference."
Brooklyn Trust Co. v. Hebron, 51 Conn. 22, 29-30.
It follows that the vote passed at the annual meeting of the
Town of Bloomfield in 1868, purporting to authorize the town
treasurer to borrow money for the use of the town, was invalid for
want of any evidence that the subject was specified in the warning.
The statement in the record of the meeting
Page 121 U. S. 135
that it was "legally warned," shows only that it had been duly
warned for some purposes, not for what purposes. The circuit court
ruled that this vote did not of itself authorize the treasurer to
borrow money, but submitted the vote, with the other evidence in
the case, to the jury as sufficient to authorize them to find
either that the town had made him its general agent to borrow
money, or that it had ratified his acts, or that it was estopped to
deny their validity.
That evidence consisted only, 1st, of forty-four notes made by
the treasurer to sundry individuals after the passage of that vote;
2d, of the reports made in print by the selectmen and treasurer to
the annual meetings of the town from 1869 to 1878, inclusive,
showing various sums received or paid "on town notes," and a
gradually increasing "indebtedness of the town by notes," and the
records of those meetings, showing that in 1869 such reports were
"read and accepted," and that in after years no action on them was
taken by the town; 3d, of a vote passed by the town in 1880,
authorizing the selectmen to make notes in behalf of the town to
take up and cancel certain memoranda of indebtedness, made by
officers of the town, dated July 1, 1879, for money lent to the
town by various persons and the acts of the selectmen pursuant to
that vote.
Any ratification of an act previously unauthorized must, in
order to bind the principal, be with full knowledge of all the
material facts.
Owings v.
Hull, 9 Pet. 607;
Bennecke v. Insurance
Co., 105 U. S. 355. And
no estoppel
in pais can be created except by conduct which
the person setting up the estoppel has the right to rely upon, and
does in fact rely and act upon.
Burgess v. Seligman,
107 U. S. 20;
Scoville v. Thayer, 105 U. S. 143;
Brant v. Virginia Co., 93 U. S. 326.
The vote of those who attend a town meeting being of no validity
against the town or its inhabitants unless the object of the vote
is set forth in the notice or warning of the meeting, the town can
no more ratify an act afterwards than authorize it beforehand,
except by vote passed pursuant to a previous notice specifying the
object. Without the indispensable prerequisite of such a notice,
those present at a town
Page 121 U. S. 136
meeting have no greater power to bind the town indirectly by
ratification or estoppel than they have to bind it directly by an
original vote.
Marsh v. Fulton
County, 10 Wall. 676;
Daviess County v.
Dickinson, 117 U. S. 657;
Norton v. Shelby County, 118 U. S. 425;
Pratt v. Swanton, 15 Vt. 147;
Lander v. Smithfield
School District, 33 Me. 239;
American Tube Works v. Boston
Machine Co., 139 Mass. 5.
By the statutes of Connecticut, it is made the duty of the
selectmen to superintend the concerns of the town, to adjust and
settle all claims against it, and to draw orders on the treasurer
for their payment; to keep a true and regular account of all the
expenditures of the town, and to exhibit the same at the annual
meeting, and it is the duty of the treasurer to receive all the
money belonging to the town for taxes, fines, forfeitures, debts,
or otherwise, and to make an annual statement of the receipts of
money into the Treasury, and the expenditures, which shall be
adjusted by the selectmen, and laid before the town at the annual
meeting. Rev.Stats. 1866, tit. 7, §§ 45, 67; 1821, tit. 101, § 8;
tit. 103, § 20. But neither the selectmen nor the treasurer have
any general power to make contracts, to borrow money, or to incur
new debts in behalf of the town except for particular objects
having no relation to this case.
Sharon v. Salisbury, 29
Conn. 113;
Ladd v. Franklin, 37 Conn. 53;
Goff v.
Rehoboth, 12 Met. 26.
The reports made by the selectmen and the treasurer to the
annual meetings, in performance of the duties imposed upon those
officers by statute, were not, unless expressly approved or acted
on by the town at a meeting duly held upon sufficient warning,
evidence to charge the town with liability for debts which those
officers had no authority to contract. The only reports of the
selectmen and treasurer upon which the town took any action were
those of 1869. The acceptance by the town of those reports might be
a ratification of the debts and payments therein stated, but could
have no further effect,
Burlington v. New Haven &
Northampton Co., 26 Conn. 51;
Benoit v. Conway, 10
Allen 528;
Dickinson v. Conway, 12 Allen 487;
Arlington v. Peirce, 122 Mass. 270;
Bean v. Hyde
Park, 143 Mass. 245. In
Kinsley v. Norris, 60
N.H.
Page 121 U. S. 137
131, cited for the plaintiff, the town, under an appropriate
article in the warrant, had voted not only to accept the report of
the doings of an agent, but also to give him additional powers.
There is nothing in the case at bar which tends to show that any
of the promissory notes to individuals offered in evidence, or of
the notes mentioned in the annual reports of the selectmen and
treasurer accepted by the town in 1869, or in the vote of the town
in 1880, were held by the plaintiff. The bill of exceptions
explicitly states that no evidence was offered that the town, in
town meeting assembled, knew that its treasurer kept his bank
account with the plaintiff, or was borrowing of the plaintiff the
money represented by the notes in suit, or by notes of which these
were renewals, and also states that the plaintiff disclaimed any
advantage by virtue of being the endorsee, instead of being the
payee, of the notes in suit. The bill of exceptions does state that
it appeared by the evidence that the plaintiff, from the beginning
of its account with Mills as treasurer, "supposed or thought that
Mills was authorized to borrow money for the use of the town, and
give its notes therefor." But it contains nothing tending to show
that the supposition was based upon anything but false
representations of the treasurer, which would not bind the town.
Railroad Bank v. Lowell, 109 Mass. 214;
Agawam Bank v.
South Hadley, 128 Mass. 503. Nor was there any evidence that
the plaintiff, at the time of lending money to the treasurer, knew
of any acts of the town or of the selectmen, since the vote of
1868, and the vote of 1880, and the acts of the selectmen under it,
took place after the notes in suit had been made and delivered to
the plaintiff, and therefore could not have influenced it in taking
them.
Upon the whole case, there was no proof of original authority,
or of subsequent ratification, or of estoppel, to bind the
defendant town; none of original authority, for want of any vote
passed pursuant to due notice in the warning; none of ratification,
for the same reason, as well as because it was not shown that the
acts proved were done with intent to ratify the acts of the
treasurer in issuing the notes sued on, or with
Page 121 U. S. 138
knowledge of all the material facts attending their issue; none
of estoppel, because there was no evidence of any acts of the town
which the plaintiff had a legal right to rely upon, or did in fact
rely upon, in taking these notes.
The jury having been instructed otherwise, the
Judgment must be reversed and the case remanded to the
circuit court with directions to set aside the verdict and to order
a new trial.
