Clark v. Wardwell , 55 Me. 61 ( 1867 )

Dickerson, J.

This is a process in equity, brought under c. 239, of the laws of 1864, to enjoin the respondents, town officers of Frankfort, from paying or receiving certain town orders, drawn in pursuance of a vote of the town, to pay bounties to the persons therein named.

In the absence of any statutory provision, the towns and cities in this State had no authority to raise money to pay bounties to soldiers; and it is worthy of remark, that the legislation upon this subject, instead of preceding, followed the action of the municipalities, ratifying rather than authorizing their doings in this respect.

The several enactments of the Legislature, legalizing the proceedings of the municipalities, in offering and paying bounties to secure the performance of military service, in the cases specified in those statutes, made them valid in as full and ample a manner as though they had been authorizeel by law; — provided, tbe meetings at-which these proceedings were had, were legally notified and held. Sanborn v. Machiasport, 53 Maine, 82.

Section 7 of chapter 3, R. S., requires that notice of town meetings shall be given " by posting up an attested copy of the warrant in some public and conspicuous place in said town, seven days before the meeting, unless the town has appointed, by vote, in legal meeting, a different mode.” It has been repeatedly held that a failure to comply with this requirement, in any particular, renders the doings of the meeting void. State v. Williams, 31 Maine, 231; Beard v. Fossett, 34 Maine, 575; Brown v. Witham, 51 Maine, 21; Sanborn v. Machiasport, 53 Maine, 82.

The return upon the warrant calling the meeting of the 6th of March, 1865, when the bounties in question were voted, recites that service of the warrant wás made by "posting up two copies’of the warrant in two public and conspicuous places, one at J. Ward well’s store, one at the post office at Frankfort Mills, seven days prior to the time appointed for said meeting.” The omission to certify that an attested copy of the warrant was posted up, is a fatal defect, if, indeed, this return shows that either of the notices was posted up within the town of Frankfort. The return upon the warrant calling the meeting of March 5, 1866, at which the town voted to raise money to pay the bounties in question, is liable to the same objection.

If the respondents would avoid the effect of these objections, it is incumbent upon them to show that these meetings were called in accordance with the mode prescribed by the town, at a legal meeting, or to have the return amended by the warning officer, if he actually posted up an attested copy of the warrant as the statute requires. They have not availed themselves of either of these alternatives, though notified that the return is amendable according to the facts.

The learned counsel 'for the respondents contends that this objection is not open to the petitioners, inasmuch as it is not specifically set forth in their bill. The bill alleges that the town had no legal right to authorize the selectmen to issue the orders, as voted at the first meeting, and that the Legislature have not ratified its doings. In respect to the second meeting, it is alleged that the town had no legal right, power or authority to vote to raise money to pay these orders, and that its proceedings in this respect had not been ratified by the Legislature. The denial of prior legal authority, and'of subsequent legislative ratification, puts directly in issue the legality of both these meetings, as the Legislature has only legalized the " doings” of such town meetings as were legally notified and held.

The counsel for the respondents further argues that the injunction should be dissolved as to the particular respondents named in the bill, as the case shows that they had ceased to be town officers, when the facts were agreed upon. The bill is brought against the selectmen, collector and treasurer of the town, whoever they may be. The names of the persons holding these offices, when the bill was drawn, were inserted in the prayer of the bill in order that service might be made upon some tangible persons holding .these official relations to the town. The Act of 1864, § 1, gives a single Justice of this Court the right to enjoin the officers of a town, as such, under these circumstances, " until the final determination of the cause by the Court.” The case is, in effect, the same as if the bill had been brought against the inhabitants of the town, as it more properly should have been, if the town had not voted to raise the money, nor is-1 sued its orders for the payment of the sums voted. Under this state of things, it becoming the business of the selectmen, treasurer and collector to pay, or receive the orders in extinguishment of taxes or other claims against the town, the bill is properly brought against the persons holding these official relations to the town for the time being, both as a warning to them, and a protection to the town. If the temporary injunction is not binding upon the successors of the official persons named in the petition, the latter might keep the case in court until a board should be elected who would pay the orders; and thus the illegal purpose would be accomplished in spite of the statute specially designed to prevent it. This bill, and the proceedings under it, constitute a contingent limitation upon the powers of the selectmen, collector and treasurer of Frankfort, whoever they may be, until it is disposed of, and they are as much bound to know and respect this process, as they are other requirements of the statutes. The dismissal of parties from a bill in equity, brought against them -to restrain them in their official capacity, from carrying into effect the alleged votes of a corporation, and the insertion therein of the names of their successors, at every change made in the election of officers, as ill comports with the dignity of equity proceedings as it does with the'furtherance of justice. The principles of equity proceedings do not require courts or parties to keep watch of the election returns for any such purpose. If they did, such watchfulness would scarcely be available, as the new officers might be qualified and carry the illegal doings of the corporation into effect before service of the bill enjoining them could be made. The decision of suits in equity does not depend upon the result of any such trial of speed.

The injunction must be made perpetual, and a decree be framed by the Judge at Nisi Frius, in accordance with the principles of this decision.

Appleton, C. J., Cutting, Kent, Barrows and Baneoiitii, JJ., concurred.