Bessey v. Inhabitants of Unity Plantation

• Decision Date: 16 March 1876
• Citation: 65 Me. 342
• Parties: ANN BESSEY v. INHABITANTS OF UNITY PLANTATION.
• Court: Maine Supreme Court

65 Me. 342

ANN BESSEY v. INHABITANTS OF UNITY PLANTATION.

Supreme Judicial Court of Maine.

March 16, 1876

1874.

ON EXCEPTIONS.

ASSUMPSIT for money had and received, evidenced by an order for $371 on the treasurer of Unity plantation, dated March 22, 1865 signed " Edwin E. Hall," and " Gilbert Libbey assessors of Unity plantation." The money in exchange for the order was delivered to Francis B. Lane, acting treasurer of the plantation, also their special agent, by vote passed February 4, 1865, to fill the quota under the call of December 19, 1864.

Under the several calls of the president for troops from July 2, 1862, to December 19, 1864, the quotas for Unity plantation, required in all ten men. Its quota under the last named call was two; there was also then a deficit of one man under previous calls.

The defendants' treasurer paid the plaintiff interest on the order in May, 1869.

After the evidence was out, the justice presiding instructed the jury as follows: " If the parties hiring this money of the plaintiff had authority to do it, she would be entitled to recover; if they had not authority as I view the testimony in the case, she would not have a right to recover. If the plaintiff can recover at all she can recover upon the order; and it is purely a question of law, whether they had authority or not, and depends upon an examination of the records. An order is produced here, signed by men who were acting as assessors of that plantation. The money was obtained by the agent who seemed to have some color of election, as a special agent of the plantation, and so far as it appears, the money was loaned in good faith by the plaintiff, and I do not think it makes any difference under those circumstances what the assessors did with it afterward. If they had authority, the plantation would be liable, and I feel bound to give an instruction, rather pro forma than otherwise, (for I have not had an opportunity to examine,) that the plaintiff would be entitled to recover, and the clerk will make up the verdict, and your foreman can sign it without leaving your seats."

The defendants, the verdict being for the plaintiff, excepted.

J. Baker, for the defendants.

I. The plantation was organized under the statute of October 2, 1840, for election purposes only.

II. This plantation had no power in 1865, to raise money by taxation or loan for any purposes. Public Laws 1840, c. 89, § 1. Plantations organized under this act had power only to choose a moderator, clerk and three assessors, and to perpetuate their organization by annual meetings for voting purposes only.

By intervening acts between that act and the revision of 1857, their powers were increased so that they could elect assessors, clerk, surveyors of lumber, fence viewers and constables, and that was all. There was no power to raise money, or assess or collect taxes, granted to them by any of these acts. Between 1857 and 1865, no new powers were conferred on this class of plantations. So that when the meeting of February 4, 1865, was called and held, this plantation had the powers contained in R. S. 1857, c. 3, §§ 70 to 75 inclusive, and no more. There was no power to raise money, or to assess, or to elect a treasurer or collector. There was no treasury.

So the counsel contended, that if all the proceedings in relation to the order in suit were legal in form, they were still void, and conferred no authority on any officer or agent of the defendants to bind them. He also contended that the proceedings were not regular in form, and that they were not cured by the ratification acts of 1865, c. 298, and of 1866, c. 59; and further, that the plaintiff could not recover on the money count, for the reason, among others, that it was not proved that any man was actually put into the service, and credited to their quota. Bank v. Lowell, 109 Mass. 214.

A. Libbey, for the plaintiff.

I. The state tax acts are public acts, and show that the plantation has for many years been taxed the same as towns.

The records put in show that the defendants were acting as an organized plantation.

For all purposes within the powers of plantations the assessors have the same powers as the selectmen of towns.

II. A quota having been assigned to this plantation in the same manner as to towns, it was subject to the same duties in regard to filling it, and had the power to raise money by taxation, or to borrow money for that purpose. Act of 1864, c. 227, §§ 5 and 6.

III. The money having been borrowed by the agent held out as authorized by the action of the defendants, for a purpose authorized by law, they are estopped from saying now that their action was technically irregular, and that they are not bound.

Selectmen of towns and assessors of plantations have power to borrow money for lawful purposes, to meet the obligations of the town or plantation without special authority. Andover v. Grafton, 7 N. H., 298. Pike v. Middleton, 12 N. H., 278. Dillon on Municipal Corporations, § 384. Argenti v. San Francisco, 16 Cal. 255.

Such has been the practice of New England towns for many years.

The action of the officers de facto bound the defendants. Cushing v. Frankfort, 57 Me. 541.

Having received and retained the money, they are liable under the money count. Smart v. Blanchard, 5 Chand., N. H., 137. Alleghany City v. McClurkan, 14 Penn. 81. Atlantic Bank v. Merchants' Bank, 10 Gray 532.

IV. The defendants have ratified the loan by paying interest through Hall, their treasurer; a stronger case on this point than Belfast & M. H. L. R. R. Co. v. Brooks, 60 Me. 568.

BARROWS J.

The money which the plaintiff here claims to recover, as had and received by the inhabitants of Unity plantation to her use, was delivered by her, March 22, 1865, to one Lane, acting treasurer of the plantation, upon the faith of an order signed by two of the assessors, and addressed to the treasurer or his successor, and commanding him to pay the plaintiff the sum therein named, in one year with interest, " it being for money lent." It appears, and is not questioned, that the officers of the plantation, when they got the money of the plaintiff, informed her and her father, under whose advice she was acting, that they wanted the money to pay for soldiers to fill the quota of the plantation. Whether it was in fact so applied, is a matter not placed beyond controversy by the testimony reported; but may depend upon the opinion entertained by the jury of the truthfulness of the assessor and treasurer, and the accuracy of their recollection. No occasion for the hiring of money by the plantation for any other purpose appears to have existed.

One of the grounds upon which the defendants resist payment is, that their plantation was organized for election purposes only and was therefore incapable of contracting or of raising money by taxation or loan.

The records offered in evidence show that whatever the original purpose and form of the organization might have been, this plantation, for a series of years prior to this transaction, had been exercising most if not all of the functions belonging to the other class of plantations. It is probable that some of the plantations, originally organized for election purposes only under the act of October 2, 1840, passed into the other class under the provisions of R. S. of 1841, c. 14, §§ 40-49, upon being ordered by the legislature, from time to time, to pay their proportion of the public taxes, with very imperfect records of the proceedings which completed their organization.

But whether that was the case with Unity plantation or not, the single fact, (which appears in the records of the adjutant general's office,) that during the war it had its quota of soldiers under the different calls for troops regularly assigned to it, makes it certain that it comes within the purview of the various legislative acts affecting the powers and duties of towns and plantations in relation to the procurement of soldiers, the business of state aid, and kindred topics. Whenever a duty is imposed all the power necessary for its proper performance is given, if not expressly, then by inevitable implication. We cannot doubt that, whatever the form of its original organization, any plantation, which had a quota of soldiers assigned to it, received sufficient legislative recognition as duly organized, in the successive acts, " to make valid the acts and doings of cities, towns and plantations in voting and making provision for the payment of bounties to volunteers" & c., to be bound by those acts so far as they are found applicable to its votes, and the contracts made by those who were its acting officers or its lawfully authorized agents.

The inhabitants of this plantation cannot rid themselves of the liability to pay this money upon the plea that they had no such corporate organization or existence as enabled them to make the promise which the plaintiff alleges and they deny.

But all these acts and contracts, whether of...