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

We have examined the record relating to
the question between the town of Brattleboro
and the Brattleboro q Bennington Railroad
company. This record contains all the facts
bearing upon the question you submit to us,
so far as We are informed
1t seems that at the time the town voted to
roscind is vote to aid in the construction of
the road, the commissioners appointed to car
ry the vote into effect had not subscribed for
the stock of the railroad company, nor have
they borrowed the amount authorized IN the
third vote of the town, or pledged the credit
of the town for that purpose. II does not
appear from any vote of the railroad company,
or from any vote Of the directors of said com
pany that it has bound itself to accept the
proposition of the town implied by its votes
and the law authorizing them.
By referring to section 27GO Of the Revised
Laws, it will be seen that it is therein proyid-
ed that the town may aid in the construction
of the road by taking capital stock of the
company and by the first resolution adopted
by the town at its meeting held on the 80 of
February, 1888, it is provided that the town
aid ''shall be furnished by subscription to the
capital stock of said railroad company. Now,
We think that something more than mere
vote or votes of the town must be shown be.
fore the railroad company is entitled to the
aid contemplated, or before the town is le-
gally entitled TO the stock of the company.
Under the provisions of this section and the
votes referred to- the aid voted is not grant
or gratuity and if not, there must be q sub
scription for the stock on behalf of the town.
The very nature of the transaction implies
contract relation binding both parties to the
agreement to afford the aid and to deliver the
stock of the company, 80 to express it, in CON
sideration of the aid furnished by the town.
But the case, so to call it, presents another
question, in view of what appears aud does
not appear and that is, whether or not the
railroad company is bound to accept the aid
under the votes, and to allow the town to sub
scribe for its capital stock. Evidently the
vote of the town does not bind the railroad
company, nor can it be treated as an accept
ance by the company of the vote Of the town.
If not the railroad company has as yet &C.
quired no absolute claim against the town.
Then again, as we think, O contract to take
stock in a corporation, whether it ia a railroad
company or other incorporated company, can
not arise by mere operation of a statute pro-
vision, but there must exist some contract be-
tween the parties mutually binding both and
the effect of the statute relating to tho subject
is to give the town the legal capacity to enter
into such a contract If this is so, the whole
matter upon the facts rests in the votes or
resolution of the town, and the supposed CON
tract between it and the railroad company to
subscribe for stock is imperfect. Although
section 2764 of the Revised Laws provides
that the votes of the town shall DO binding
that means simply that the votes shall be bind
ing on tho town according to its completed
contract authorized by the votes and the law
There must be some action on the part of both
parties 10 tho contract, binding both. In the
absence Of any action in respect to it on the
part of the railroad company, could the town
of Brattleboro resoind its vote to aid the com
pany before the company had done anything
binding it to accept the aid upon tho terms
authorized by the vote We do not know
how the court may hold the question in this
peculiar class Of cases In an ordinary case,
where the appropriation of town funds rests
IN mere resolution or votes Of the town, we