Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1883-07-20


and of the certificate OF the commissioners,
certified as having been recorded on the 3rd
of March, 1888, by the town clerk of Brattle
boro. 1 have copy of the record of tho
votes of said town on the 9th day of last
March, resembling said votes Of Feb. 3rd.
The votes of aid, and the assent of the tax
payers, and tho certificate of the commission
ers and the recording of the same in the
town clerks office, all seem to have been ac-
cording to the provision of the statutes in
that behalf. The copy of the record does
not show that record thereof was made in
the office of the secretary of state, but you
stated to me that such record was made in
that office on the 9Th day Of March last, the
day before the town meeting at which said
resembling votes were passed
If, before said resembling votes were pass
ed, the commissioners had subscribed for
stock pursuant to said votes of aid, and said
assent OF the taxpayers, after the records in
the town clerks and secretary of states of
fees had been made as provided by statute,
such subscription would have been lawful,
valid and binding on the town.
Not having so subscribed, the first aud bot
tom question is, did those resembling votes
take away the authority of the commissioners
to make the subscriptions Not only is 1t
clear in the nature of the case, but it is set
tied by explicit decision in DdHUaie O. MOHtpe-
Tier d. 50. J0dHSJUry 10. Il. Co., - VI, IA,
that commissioners to make subscriptions are
the agents of the town, by whom the town
subscribes and issues bonds. So far as max
ing the subscription for stock, and the issuing
of bonds are concerned, their agency is pure
ly ministerial They are the mere hand Of the
town to do its act. They owe duty to the
town only, aud that duty is, to do tue act Of
the town
Any duty towards the railroad company, in
respect to the aid voted Is solely the duty Of
the town. The parties having rights and
owing duties as against each other are the
railroad company on the one hand, and the
town on the other. The railroad company
can claim nothing of the commissioners, only
as it is entitled to claim the performance of Il
duty owing to it by the town. The commits
sioners are clothed with whatever authority
they have to act for and in the name Of the
town, by the votes of the town. Hence,
when it il claimed that the commissioners
should subscribe for the stock to the amount
voted, the question at once arises, as the
town under legal obligation to the railroad
company to make the subscription II it
is under such obligation, it is by force of the
votes of Feb. 3rd, the assent Of the tax pay
ers and the recording above named. IN spite
of, and as against tho resembling votes Of
March 9Th
1t may be here remarked that the commits
sioners have no right as against the town.
The town owes them no duty. They can not
be party insttuung any proceeding against
the town to compel carrying into elect the
votes of aid. As before said, they are mere
agents of the town, by whom the town, in
its own right and name, Is to make transac-
tons with another party. That other party
alone has u standing for the purpose of claim.
ing rights and duties Of the town. That other
party is the railroad company.
Now as to the resembling votes OF March
9th. They are in form, language and enact
ment ample to rescind and undo the votes of
Feb. 3rd, and they did that, if the town had
the capacity and right to rescind. Had the
town such capacity and right In the case
of St0d,idrd Z. Gilman, % Vt, jGS, it is held
that so long as vote by the town to raise
money by Il tax has not been acted on by way
of collection, it may be rescnded or recon
sided that it is not in the nature of a grant
or contract between the town and an indiyid.
ual that until something has been done I'M
der the vote by way of collection, the town
alone is interested in it, and may alter their
resolve at their own pleasure In that case
the tax bill was made out on the day that the
vote of reconsideration was passed, and it was
delivered to the collector the next day The
collector took property by virtue of the tax
bill and warrant. 1t was decided lis doing
so was unlawful by reason Of the reconsider.
ing vote of the town.
The same doctrine and view was expressed
by Ch j. Parsons in POHd O. Negns, Mass
Rep. p. 233 The doctrine is broadly and
clearly stated in Dillon on Municipal Cor
poratious, section 300 thus: AT any time
before Tie rights IF Mird persons have attach
ed, a council or other corporate body may, if
mt NIT oh 81
rescind previous votes and orders" This is
maintained by many cases cited in the note
1t is countenanced and illustrated by analogy
in section Cos, and the cases there cited.
1t is obvious that the railroad company can
have no right against the town by the mere
force of the transactions on the part of the
town which clothe the commissioners with au-
thority to make the subscription for stock
All those transactions are on the part of tho
town solely. They are only profer of aid,
without any contaminated obligation to rem
der it. They are only the devisng and pro
viding of means by which the proGered aid
may be rendered. That aid is to be rendered
by subscribing for the stock. By such sub.
scription alone does the town come into re-
lation of obligation and duty to the railroad
company, or the railroad company become in
vested with any legal, enforceable right
against the town. Any right that said com
pRny may have is created and vested by the
fact and act of making the subscription for
the stock. The town can become obligated
to the railroad company only by construct, and
such contract does not exist, so as to impose
liability, till the votes and assent and record
ing provided by the statute are followed and
consummated by the subscription for thu
stock, made by the town by the hand of the
commissioners.
In this resDact tho fouyp Glands op tho anna
ground as a natural private person. What
ever representations, and promises and prop
arations he may have made as to subscribing,
such person would not become obligated, and
the railroad company would get no right
against him until he should have made sub
scription for stock and the right which the
company would then have would be created
and vested by that act, and not without it.
What is thus said as to right, and obligation
finds countenance, and, in one way and anoth-
or, is substantially contained in the opinion by
Judge Wheeler in the Danville case and cited
above.
1 have considered section 2764 of Rev.
Laws, which is, when a majority of the tax.
payers of the town, both in number and
amount of grand list, have thus assented to
the vote, it shall be binding on the town." SC.
The aid part of chap. 1872 is the act No. 80 of
1872. Sections 27G1.2-3-4 of that chapter
are all embraced in a single section % in
the Act ofslS72, and should be read as in that
Act. The expression quoted does not mean
that the town, by such vote and assent only
shall become bound TO the railroad company,
so as to vest ANY fixed right in the company
and charge the town with liability TO the
company. The town voted hOD it would aid
viz by taking stock and issuing bonds, and in
no other way. The subscription was to be
made by the agency of the commissioners
But they were not authorized to make sub
scription till the votes and assent had been
recorded in the offices of the town clerk and
secretary Of state. See section 2767. And
still, the expression is that when the required
assent is given il shall be binding on the town
Suppose the proceeding to stop when the
assent has been given, without the certificate
of the commissioners and the recording, as
provided il the statute, would the railroad
company have got Gny right against the
town? Suppose, after such assent and be.
fore such certificate and recording the town
had voted to resoind, would there be any
question as to the effect of such vote ? Yet,
it is plain that if that expression was meant
to fix liability upon the town, without
the certificate, aud recording and subscrp-
ton for the stock, all that is provided and
required to be done t0lLOloiag such assent is
empty formality without significance or le-
gal effect. This cannot be so. On the con-