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

that the vote authorizing, empowering.
and directing the trustees of the village
to close contract for the construction
and establishing of a public sewer ac-
cording to the Mc'Clintock plan with
the lowest responsible bidder recon-
mended by the sewer committee, and to
close contract for the purchase of pipe
and material for said sewer with the
parties recommended by said committee,
is sufficiently definite to answer the re-
quiTements of the law, and comes within
the scope of the warning and the power
conferred by the Legislature by the act
referred to.
That vote in its legal effect is an ex-
pressed determination and decision on
the part of the village to construct a
public sewer on the Nc Clintock plan,
and direction to the trustees to con
struct it, and to close contract for its
construction with the lowest bidder rec
commended by the sewer committee.
Pursuant to that vote, the trustees
did on the 18th day of March 1893 make
and execute contract in writing with
Mr.. Allen, who l understand was the
lowest responsible bidder recommended
by the sewer committee.
SO far as have discovered, the con-
tract is properly executed, and its terms
and conditions substantially in accord
| ance with the vote of the meeting, and
the contract within the power of the
trustees to make under that vote. The
contractor has executed his bond in ac-
cOrdance with the specifications, at least
to the acceptance of the trustees, and the
same has been accepted by them. 1
am therefore of the opinion that the
contract is valid one, and binding
obligation on the part of the village.
oh 40 h.
understand, against the validity of the
contract as regards the due execution of
the same. Two of which l will particu-
larly notice.
First, 1t is objected that the contract,
on its face does not purport to be the
contract of the village, and that it is not
signed by the village, but by certain
persons who style themselves its
trustees, and who in fact were such.
1t is insisted that the contract should be
in the name of the village and signed by
it by its trustees or some other person
authorized so to do.
do not think this objection is we'll
taken. When the officers of municipal
corporation in the exercise of a power
conferred upon them act within the scope.
of their authority in executing a con-
tract or other instrument ON behalf of
|
names, designating themselves as such
officers, it is the act of the corporation
and not of the individuals executing it,
where the purpose of the act performed
appears to be, and in fact is for the cor
pOration, and where there are no words
or expressions showing an intent on the
part of the officers so signing to assume
personal liability.
In this case the trustees were acting
within the scope of the authority and Ill
the execution..of power COME ID upon
them by the vote of March 9th, above
recited They were making contract
for the village, not for themselves. The
benefits, if any, would accrue to the vii
lage as whole not to themselves as in
Gividuals, only in common with all the
inhabitants thereof.
The fact that the contract purports to
be made in the name of the trustees in
stead of the village, does not show an
intent on their part to make it their in
diVidual contract; but rather the CONTRA
ry.
The word Trustees" of itself in con-
nection with the subject matter of the
contract, implies that they are agents or
servants of the village, and in that con-
nection has well known meaning and
signifies that they are public officers.
Then again in the terms of the con-
tract the party of the second part is not
referred to in the plural as would be the
case if it was the personal contract of the
trustees, and | see no force in the claim
that 1t is or purports to be their indiVid-
ual contract.
Second, Another objection made to the
validity of this contract is that it is
signed by only five trustees while the
board consists of seven.
Under the facts, stated to me, by your
clerk, that all were notified of the meet
ing and the purpose for which it was
called, viz: to clos a contract; and a
! majority having been present and partic-
l ipated in signing it, l am of the opinion
that it was not necessary that all the
r trustees should sign to make It valid:
, The Village of Remington is a public
corporations; the board of trustees is
f created and its members are elected I'M
der and by virtue of its charter as there
in prescribed. In the performance of
their duties (when acting within the
t scope of their authority whether con-
Q fered by direct vote of the corporption,
: or by authority, expressed or implied,
found in the charter), they are public
officers acting as agents for the village.
Their acts and duties are of public ma
ture, and directly concern Inc puOlc
alone, and only incident lily the individ-
: ual.
The closing of this contra It was the
performance of trust; the execution of
! pow err conferred upon the trustees by
the village acting under authority of
| law. 1t was one step in carrying out the
purpose of the village to obtain a sys-
: TEN of public sewerage, which it had by
its vote to construct, determined was
necessary for the public health, and
5 which the law from the character of the
, work and the object to be obtained, rec
t ognizes as public work, and one Incl
r dental to and often necessary for large
villages.
! l apprehend it is we'll settled law, that
= when board of officers is authorized by
law to execute a power or perform a
trust or duty that the law prescribes, it
is not necessary that every member of
the board should concur or even partici-
: pate in the act done. The act of the
majority is the act of the whole. If the
, whole board has such notice of the time
and place of meeting as is usually given
when called together, or has such
reasonable notice that all may be present
if they choose, the act of the majority
will be valid.
This is the rule of the common law