The Bennington banner. [volume] (Bennington, Vt.) 1858-1894, 1893-04-28

mended by said committee. After this
vote it was the duty of the trustees to
lay out, construct and establish by con-
tract, just such public sewer as they
were directed by vote. The power to
act was complete, and when the trustees
made and executed the contract with Mr..
Allen, they performed the mandate of
the village and the charter, ana as the
contract is for just such sewer, upon
the MoClintock plan, and with the per-
son contemplated by the vote, is a valid
contract binding alike on the village and
the contractor. 1t is the contract of the
village, within its chartered authority,
and made in the manner pointed out in
the amendment to the charter, and it
cannot be impaired in its obligation by
either party or either by an act of the
legislature.
A question is made that the execution
of the contract is incomplete, because
only five of the seven trustees signed it.
By section 80, of the consolidated act of
1884 the construction and establishment
of sewers was left to the action of the
trustees, or a majority of them when au-
thOrized by a vote. This section was
repealed in 1892 and there was put in its
place a provision, that the trustees
should act, when authorized by vote.
In section of 1892, in providing for
assessment on abutting owners the
same expression is used: 'the Trustees
or majority of them" The change
of phraseology does not indicate legis-
lative intent to require the action of
every member of the board. Its signifi-
canoe is rather that the legislature in
tended that the same construction should
be put upon it, as is generally put upon
friu 70 n nf
officers.
Since 1897, it has been the statute law
of this State, that when joint authority
is given to three or more, concurrence
of majority of such numbers shall be
sufficient, and shall be required in it's
exercise. Without this statute it might
be safely said that when applied to pub
lie business there is no rule to require
the unanimous concurrence of all public
officers constituting the board having
power to act The clear statement of
this rule by Chief Justice Shaw, ought
to settle it:
When body or board of officers is
constituted by law to perform a trust for
the public, or to execute power, or
perform duty prescribed by law, it is
not necessary that all should concur in
the act DONE. The act of the majority is
the act of the body. And when all have
due notice of the time and place of meet
ing in the manner prescribed by law, il
so prescribed, or by the rules and regu-
latlons of the body itself, if there be any,
otherwise if reasonable notice be given,
and no practice or unfair means are used
to prevent all from attending and partic-
lpating in tue proceedings, it is no OBJ
lection that all the members do not at
tend, il there be quorum"
The contract in this case was properly
and sufficiently executed.
The foregoing answers fully the two
first points upon which my opinion was
required. As to the other can only say
that do not fully comprehend what was
intended by the second meeting The
action of March 10Th is ambiguous.
Article three of the warning read as
follows:
To see if the village will vote to re-
scind the vote of the corporation taken
March 9th 1893, at the special meeting of
said corporation held on that day, in
substance as fellows, viz: That the
trustees of the village be authorized and
directed to close contract for the con-
struction of system of sewers accord
ing to the McClintock plan with the low
est responsible bidder recommended by
the committee, and that the trustees be
authorized and directed to close con
tract for the purchase of pipe and ma
terials for said sewer system, with the
parties recommended by the COM
mittee.n
The warning is all right and would
authorize vote relating to that subject.
Under it the meeting voted to adopt the
third article in the warning. That
comes far short of vote to rescind. At
most 1T is vote to see if the meeting
will rescind; we must however, read the
whole proceedings together so far as
they relate to this subject. Reading on
in the record we find vote that the
senseiof the meeting is embodiedsin GER
tain resolutions. After preamble it is
resolved: LIST. That the trustees are
hereby directed to issue village orders
for the payment of the whole cost of
sewers. This resolution is wholly in
consistent with the idea that the vote to
build sewers was rescinded. The 2nd
resolution declares that assessments
shall not be made on abutting property
holders for any part of such cost until
after the adjournment of the Vermont
legislature in 1894. This resolution is
not consistent with the idea of reels
sion of the former vote. The 3rd reso-
luton directs the trustees to procure leg
islation allowing the payment of ex-
penses on the grand list for the whole
cost of the construction of the sewers,
and expresses an opinion that the pay
ment for village sewers should be ex
tended many years. Taking the record
as a whole, it does not come up to a vote
to rescind the former vote and has no
effect upon it. The burden carried by
this meeting of the Doth, was one that 1t
could not bear The sewers were
ordered to be built, and the contract was
made. 1t was valid and binding, and
under it, the sewers will be built 1t is
not left for the village to say whether
the abutting owners should be assessed,
but it is mandatory that that method of
taxation shall be adopted, and any other
illegal and the taxes not cOllectable. No
vote of the village can change that part,
or the time when the assessments are due.
The village cannot control the pre-
scribed method of assessment and col
lection. The statute cannSt be repealed
by resolutions in village meeting.
But if this meeting had voted In ex-
press terms to rescind the action of the
prior meeting, giving authority to make
this contract, il would not have had any
effect upon the contract itself Cities,
towns and villages acting within the
authority conferred upon them by