Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1883-07-20
PHd5N1x AND RECORD AND FARMER, FRIDAY 20 1888

the town with liability to the railroad com.
pany and give tho company right against
the town. That expression only means that
when "a subscription for stock shall be made
as provided in the statute, the same shall be
binding on the town by reason Of the vote
Of the town and tho assent Of tho tax payers.
| repeat that the town docs not become
bound to the railroad company except by the
subscription for stock made In pursuance Of
the provisions Of the statute, which sub
soription is the last and vital act of those
provisions, without which no right is Gre.
atcd and vested in the company against the
town.
1t results, therefore, from the law as above
set forth and regarded, that the votes Of the
town Of March 9th are valid and ciTeotual to
rescind and undo the votes Of Feb. 3D.
and take from the commissioners the authuri-
ty and agency, with which, under the statute
they were clothed by the vote of Feb. I'd,
and deprive them of any right or lawful pow.
er to make subscription for stock that
would bind the town.
IL the commissioners should think that the
resembling vote was of no effect upon thom
as commissioners chosen by the vote of Feb
I'd, and that they still have lawful authority
to make subscription for the stock pursuant
to the votes Of Feb. "a, and should proceed
to do 30, what would be the legal effect Of
such subscription II the said resembling
votes were Intellectual in law and loft the
votes Of Feb. Sd in force, such subscription
would bind the town. II the resembling
votes were CiIectual ia law to mako of no ef-
feet the votes of Feb. Sd then such subscrip.
ton would not bind the town.
Would it bind tho commissioners think
| 1t clear that ii would not. In making the
subscription they would DO acting as com
missioners, in the official character and ca.
pacity provided by statute -professedly for
and in behalf Of the town, and not other.
wise, and this is 50 understood by all parties
The subscription would either bind the town
or it would bind nobody. This case stands
on different ground, and comes under diff
forent principle and rule of law from that OF
an ordinary private aud unofficial business
agency This difference is clearly stated and
illustrated in the books Sec Kent, Com.
| p. G29, 18th Ed. PIP $50 G31 G32 aud notes
Note !, page G32 says, "When m agent
makes written contract which he has no
authority to make, but which purporls to
bind the principal only, it is clear by the
weight Of authority, that he cannot be sued
on that contract la tho text j. j., taid
There is II distinction in the books between
public aud private agents, on tho point Of
personal responsibility. II an agent, on be.
half Of government, makes contract
and describes himself as such, he is not per
sonally bound even though the terms of the
contract be such as might in a case of a pri-
vate nature, involve him in a personal obi
CATION (Sse the whole paragraph See
also Br05oH .. austin, I Mass Rep. D. POS
In l Blackstone Com. (Cooley's FL p. 2i3,
note ?, it is said IAN agent Of tho gov
eminent, known to be acting in that uapaci-
ty, and not expressly making himself liable
by personal contract is not answerablo for
articles furnished on his order, but the seller
I must look to the government Ia ! Dillon
I on Municipal Corporations, p. 2G3, in note it
is said, "a public officer contracting with
party who knows the extent Of his authority,
is not personally liable, unless such intent is
clearly expressed The question is. "To
whom was the credit giveny Did the de-
PENDANT contract in his public or private ca
pacltyy III that note, as TO Liability on
/ Contracts' many cases are cited. On p. AL,
in section M It is said those dodhRg ,riH
. Tie agent Of n municipal corporation are
bound to ascertain the nature and extent of
his authority. This Is certainly 80 in all
cases where this authority is special AMI Of
record, or conferred by statute" The au
thorty Of the commissioner is yyeciu, it is
of rec0rd it is coHJtrred by statute. Tle
special books on agency state tAr law to the
same effect.
Holding the views ,hus exprcss.d j, or even
il was ia doubt upon the subjects aud ques.
/ tious named if | was commissioner / should
refuse 10 make subscription for stock in pur.
suance Of and under the said votes Of Fob
3rd, for and in the name Of the town and
should leave the railroad company 20 assert
its alleged right by petition for muhdiHiuS,
after having made authentic demand Of the
commissioners to make the subscription aud
been refused think the demand should be
made AZ official act Of the directors ia bel III
! Of the company, 10y some ono say the prysi-
dent-spycially dcputcd and authorized Tor
that purpose and 1t ought to be in writing
and the refusal also ought TO be in writing
/ so as to have no mistake or question a. to the
demand and refusal. In tins way the iudg-
ment Of the supreme court could b, most di-
reciy and speedily obtained, as ths guild for
/ all concerned, aud thus prevent exposure Of
| any and all persons to doubt litigation aud
loss. In case the commissioners should de.
termiue to make the subscription, the town
might apply to u chancellor for an Injunction
upon them against making the subscription,
| and ultimately, by appeal, the case would 20
before the supreme court But this course
! would be less direct aud the result moro dis.
tant than the former. think, il the com
missioners should determine to make the sub.
scription, they ought to notify the town au-
thorities OF their determination before doing
| it, seasonably, to enable them to apply for All
Injunction.
( It was held in the Dauvillo case that all the
commissioners must subscribe in order to
make q valid substitution. That was over
ruled in the case OF the First National bank
of Remington Z. m. Id5Or, - Vt, 81, Bar
rctt and Powers, judges. dissenting, and it
was held that all tho commissioners having
met and deliberated, certificate Of major
( ity of them is valid-the other commissioner
having refused to sign it,
The foregoing, think covers the subjects
and questions submitted. Yours truly,
Signed JAAlEs BABErrr.