The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1869-09-28
York rs, Supreme Judicial Court, Sep.
sember Term, 1869.


the treasurer and collector of Limerick as tax as
sessed to refund to certain individuals monies ad-
vanced by them upon voluntary subscription ior
the purpose OF paying bounties to persons who
should enlist upon the quota ofthe town that might
"avod the draft The plaintiff and many others,
deemng this action OF the town illegal, determined
TO resist it and brought this test case. The de-
PENDANTS contend that the healing acts have cured
any detects OF form of procedure and authorized the
course pursued by the town; and also rely upon
special act validating whatever was done at the
town meeting at which the vote was passed under
which this tax was laid plaintiffs say the action of
the town was void because tho meeting was not le-
galy Called nor holden that the object was one for
which the town could not raise money; and that the
detects were not cured by any subsequent legisla-
ton. This suit was brought at the September term,
1865 and the testimony taken out at the September
term, 1885, and the case then submitted to the de-
cison of the judges upon the facts stated. Ono de-
feet relied upon by plaintiff that the constabes
return upon the warrant calling the town meeting
was not signed by him, but that one Libby affixed
the officers name thereto at his request. The Court
are unanimous in saying this was unauthorized by
law but as 1t does not to She merits of the cause
they say the constable may amend by now writing
his own name to the return, and the case is re-
manded to ajury for the purpose of new hearing
which is had at this term of Court The opinion Of
the Court is drawn by Judge Kent and as 1t pos
sesses some points of general interest to all citizens
and especially all town officers, we will give 1t in
full.
KENT, j. "This case is submitted to the Court
with jury powers. The whole evidence is reported.
The action is instituted to recover back the amount
of tax which the plaintiff alleges illegally rails
ed, assessed and levied. Several objections have
been made to the legality Of the town meeting at
which the tax was voted The first objection is that
he moderator was not duly sworn. This is requir-
Cd by cb 8, SIS Revised Statutes. The record is ST.
lent upon the subject. The defendants ofsr certain
parol evidence to prove that lie was in fact sworn
by justice of the peace by the person presiding
| athe meeting when he was chosen" It has been
deded in several in this State that in the alb
seh> OF record evidence the fact that the required
oathvas legally administered may be proved by pa
FOL, k1ar V. Savage, II Me-, 444-Hal v, Cushing 2
Ale'' 2k Cottrick " Myrick, IL Me-, 222. But the
question,ere is whether the required fact has been
sufficient established by the parol proof? 1t is to
| De considerd that when thu law requires certain
thing to be due which. from itA a,
positive requirement of the Statues. should be re-
corded and duly certified, the permission to waive
| the production Of the record and to allow parol
PhooA eAiouu NC 30 Suarueu tudG uotninS mort or
plenary clear and distinct pad absolute evidence
should be received as su6cient substitute FIR The
record. The evidence should be of distinct ana
positive character, and not inferential or only
strong belief and conviction In tho mind of the wit
nesss that the oath was administered or from the
| nature of the case that it must have beep
The only evidence in this case upon this point is
| the testimony of tbs moderator hfm.et. He SAYS,
81 think was quilted moderator by the pre-
siding officer of ne meeting-the in the desk
| the chairman f the selectmeD, A. A. Libby. am
very positive. was sworn. The Clerk was not pres
ent. D. G eastman, Clerk pro tenn, was sworn by
Abner BuOank, Justice of the Peace" On crogs
| examination he said: "Am very confident was
sworn ~ A. A. Libby; am as confident that was
sworppy A. A. Libby as am that was sworn"
Tle next best evidence to the record in the town
book would be the certificate of the magistrate who
administered the oath. Perhaps the next to tina,
would be the testimony of such magistrate to the
iact The person by whom it is believed by the wit
ness that the oath was administered is not called to
testify. But it has been decided that the fact NAV
be proved by the testimony of the party who took
the OATH But is it unreasonable to require If that
Is to be relied upon solely, that it should be more
positive, distinct and certain than the statements OF
this witness In all the cited the proof by oral
tie stimony was positive and undoubtlng In one
case it was the certificate of the magistrate 1t can
not escape notice that the witness speaks absolutely
and unqualifedy to the fact that the oath was ad-
mnistered to the clerk pro ten and as to the per.
son who administered it. We do not however deem
it necessary finally to determine this point at this
stage OF the case for that will appear in the
conclusion to which we have como as to the present
disposition of the case.
The next objection relates to the warrant and re-
turn thereon The defendants put into the case the
original warrant and return and 1t is make mart Of
the case by themselves and is therefore prorerly be-
fore us. The constable whose name appears as the
sgner OF the return called by the defen lans and
testified that, "The signature to the return on the
warrant is not my handwriting 1t was written By
my direction and in my presence by Abner A. Lib
by, one OF the seectmen. was standing beside hi:
counter. told him to write my name to the return
alter he read the return which he wrote" This
presents the question whether public officer can
authorize another to put his name to official doc
ument which the law requires shall be signed BY
him. 1t may be admitted that private person
when acting in his own business, NAV tiHu himself
by signature which he direoss another TO make fol
him. But the law generally means by signature
tho writing by man of his own name or by actual
ly making his mark. The distinction between the
signature binding individuals when made by anoth.
er and those made by public officers in their official
capacity Is clearly set forth by the statute entitled
"Rules OF Construction" Rev. st, Chap. l.. BY
Sect it Is provided that the following rules are
be observed in the construction of statutes unless
such construction is inconsistent with the plain
meaning Of the enactment" The IS rule il this
when the signature of a person Is required he
must write 1t or make his mark" 1t will be observ-
ed tn is not general rule applicable to contracts
or instruments between private persons, excep,
where signature is required by statute. 1t wa:
very manfestly intended to reach the cases of put.
lie oicers-required by the statute 10 sign official
documents-and to do away with any possible con.
struction by which an official signature could be
made by proxy. The statute (Chap 3,s7,R. 81 re.
quires that 'The person who notifies the meeting
shall mako his return on the warrant stating the
manner Of notice and the time 1t was given" This
return is an essential preliminary to legal meet.
ing. 1t Is the legal evidence that it has been called
according to law 1t Is conclusive upon the rights o.
all. 1t therefore becomes very Important public
document. Tho officer making 1t is responsible fol
its truth and correctness. It requires no argument
to show that it was never in the contemplation Of
the lawmakers that official certificates or returns
which the law requires of those holding certain off,
cas, might be signed by at orney or agent, or tina
the officer SO that they should bear his own hand
writing.
There may be cases unquestionably where the
signature is made by third person at the request OF
the officer in good faith and with honest intentions
by all the parties, and this is without question one
of such cases. But if we sanction this mode of au-
thentication in such case we establish doctrine
which will be far reaching in its effects 1t would
reach to all cases where any public officer is requir-
cd to sign any instrument or certificate. Tho clerk
oil Court might sign wris, executions and records by
proxy sheriff might authorize a bystander, per-
maps transient person, when no one else was pres
ent to write the sheriff's name to return of lew
The Governor of the State might thus sign DEATH
warrant If this action by deputy was sanctioned
it would offer temptation to many officers to avoid
all liability for their official misdoings, or neglects
or mistakes, by taking care to have third party
write his name to his return tr certificate and TAX
ing care to have the proof that 1t was done by his
direction difficult if not impossible. denial Of his
signature would be his defence. 1t is we'll known
that the President of the United States has Secre-
tary who Is authorized to sign the name Of the Pres
ident to land warrants. But this is permitted by
special law, and the fact that such law was required
before the President could be relieved from the
drudgery Designing each warrant is strongly corrob
orative ofthe general doctrine that all public Off
GERS must sign their own names to their own re-
turns and certificates Of official acts,
This is not case where the officer purnor+, IN ont
by deputy and the fact appears on his pronerlv sior-
ed return. In cases like this there /, no Indication
-, xI,oko HAL