The Bennington banner. [volume] (Bennington, Vt.) 1858-1894, 1893-04-14

act. as to build sewer or any other
structure. Until something has been
done under the vote, the corporation
alone is interested in it; it concerns no
one else and may be rescinded. That is,
the corporation may conclude not to do
the act 1t had before decided to do. 1t
may, figur lively speaking, change its
mind Just as an ind: "id,, 80. may; cnange
it in the same way that it expressed it,
by a vote in meeting duly called and
holden. And when it has so voted, the
first vote, the resolution first made, is as
though it had never been made. This
principle of law is well settled and is in
herent in every municipal corporation
unless otherwise expressly provided by
law, and grows out of the necessity OF
the case. A city or village may consider
advantageous and for its interests to do
a certain act or carry out public i'm
provement, but before it has actually
commenced the work, circumstances
may arise that may make it injudicious
and undesirable TO do so, or an excessive
burden. Can it be claimed that it may
not change its purpose and rescind its
previous vote; and if it may do it under
one condition OF facts or circumstances
it may under another. In other words
it may determine foritself whetherits in
terest calls for a resembling, and vote
to rescind is conclusive on this point.
What l have thus far said applies
equally to vote to construct sewer
and one to make or close contract to
build it. The vote to ''close" a contract
was but the authorization and direction
to the trustees to make it, and that
power might be revoked by the village
any time before the contract was made.
The village had simply by its vote in
Structed its trustees to make 1T. The
village was the principal, the trustees
only its agents, and it could modify,
change or entirely revoke the authority
it had given, for such action concerns
no one but itself. At that stage the re-
vocation would be simply the revocation
of the authority to MAKE the contract,
not the contract itself.
But the important question is, what
power or authority had the village to
change or alter its determination and
instructions to its trustees after
they had acted upon them and
actually gone on and made valid
contract between the village and con-
tractor? Can the corporation then con-
clude that after all it will have no sewer;
can 1t then change its mind, revoke its
instructions and resclnd its vote?
The general rule of law on this subject
is not in doubt. rhe question is as to
its application or scope. The rule is
this, viz;-rhe governing power of
municipal corporations has the power,
if vested rights are not interfered with,
to reconsider and rescind at any time
any actionfpreYiously taken by it.
A vested right is just what the term
implies "a right vested, fixed, In the
case of valid contract it is a right
which party to that contract has, to
have it performed, that he may receive
all the benetit, profits and advantages
that would accrue or come to him by its
performances and this right cannot be
taken away from him. 1t is guaranteed
to him by the law of the land. 1t is, in
a certain sense, property just as much as
his horse or his house. If he is de-
prived Of it by the refusal of the other
party to perform the contract, he has
his remedy against such party by suit to
recover by way of damages, for the
wrong and injury he has sustained.
This right of damages is one which the
law attaches to every valid contract and
it is not necessary that the parties should
in terms agree to it when they make the
contract. 1t is implied.
Applying these principles to the
proposition above stated Wz;-"That a
municipal corporation has the power,
if vested rights are not thereby inter
fered with, to reconsider and rescind a
a former vote" Or to state the propo-
Sition another way;-A municipal cor
former vote that will interfere with vest
ed rights.
Does this mean, that if a municipal cor
pOration has passed vote, and under
some clause or section of it a contract
has been made and right become vest
ed in another party, that future yote
to rescind the former one is wholly null
and void, the same as though never
passed, and that the former vote still
stands in its entirety just as it did before
the attempt to rescind? Does it mean
That the village of Bennington after it
has determined to have system of
sewers, vy vote directing its trustees
to build it, and to make contract with
party to construct it, and the trustees
make such a contract, that the village
cannot change its mind and decide it
will not have it; that it cannot alter its
determination however desirable it may
be to do so?
Or does it mean that, if It afterwards
determines not to have the system, but
changes its purpose and intent, that it
may undoe and destroy the effect of the
first vote to that extent, but cannot I'M
doe the effect of the vote as to the con-
tract made by the trustees under it.;
cannot annul or rescind contract to
the extent of destroying the rights of
the contractor; cannot revoke a power
delegated to its trustees so as to destroy
the effect and binding force of con-
tract made by them; cannot in other
words destroy or effect the contractors
vested rights in the contract, but that
its power to Tescind or reconsider the
vote to that extent terminated when the
contract was made?
am inclined to the latter view, and
am of the opinion that tle village had
power and did on March Goth, by its
vote to rescind, annul the effect of its
vote of March 9th, to establish system
of sewerage; that is that it reconsidered
its purpose in that respect, and deter
mined, as it had right to do, that il
would not have the sewer system, and
neither it nor its officers have now any
power to go on and complete the work
until further .Iction is had. But the
contract to construct the sewer still ex.
lists, and the rights of the contractor
under it still remain. And they are
vested rights. The contract being an
executory one, the village has power to
repudiate it so far as to refuse to carry