Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-08-16
in FAVOR or soMERyiLLE.
Decision Of Justice Savage in Suit to
Recover on Town Bonds. ;

Associate Justice Albert II. Savage
of Auburn Saturday handed down a
decision in the case of K. M. Leavitt VS..
Town of Somerville in favor OF the de-
PENDANT. The action is a suit to, recover
upon bonds Issued by the town of SOM
erville in Lincoln county to refund the
town debt, which had been increased
beyond the limit of per cent. before
the bonds were issued. Justice Savage
in the rescript declares that the plain
tiff has failed to show that all of the
debt, which the loan his bonds repre-
sents was taken to refund, was law
fui obligation of the town. The rescript
is as follows:
Z. NJ. Leavitt VS.. Town Of Somerville.
Rescript by Savage, j.
/. A town has the right to hire mon
ey to refund the debt which it owned
in 1873, when the amendment to the
constitution limiting municipal indebt-
edness took effect, even if it's debt was
then in excess of the per cent. limit.
2. In such case town cannot con-
stitutionally create new or additional
paid, to the extent of the debt limit
lOT can IL niTG ilOlley " pay q oSOt
thus unlawfully created.
8. If a town, however, does create
unconstitutionally such an additional
debt and hires money to pay both
classes of debt, Unfortunately, the
faint of the unlawful part permeates
the whole loan and makes it uncollec-
tible.
4. When towns debt is in part law
full, and in part unlawful by reason of
it's being in excess OF the constitutional
debt limit, a vote TO issue bonds ito
fund the town debt applies to the I'M
lawful part of the debt, as well as to
the lawful part. And bonds issued in
pursuance to such a vote are wholly
invalid and uncollectible.
5. The increase of town debt, due to
the accretions of unpaid interest on
existing lawful Indebtedness, is not the
creation of a new debt. within the
meaning of the constitution.
6. The records of town, showing,
reports of the town officers concerning
the amount of the town debt, and
showing that the reports were accept
ed by the town, are admissible in ia
for of the town to show an indebted
ness in excess of the constitutional linn
itation, and are prima facie evidence
of the amount of the indebtedness of
the town at the time when made.
7. The burden is on one, who would
recover a loan made to town for the
purpose of paying it's debt to show that
the debt to be paid was within the
constitutional limit, when, for the pur-
pose of showing an existing indebted
ness, a plaintiff in an action to recor-
er on a bond issued to pay town debt,
introduces the town record, which also
shows the amount of the indebtedness
of the town, the whole record is evil
dence.
g. There is no presumption that an
increase in the indebtedness of town
is due to it's having unpaid the accru
ing interest on a lawful Indebtedness,
rather than the current town expenses.
g. When, in fact, towns indebted
ness has been increased beyond the
debt limit of per cent, and bonds are
issued by the town ITO refund the town
debt" in a suit to recover on one of
such bonds, the burden is On the plain
tiff to show that all of the debt. which
the loan his bond represents was taken
to refund, was a lawful obligation of
the town. This, the plaintiff in this case.
failed to do.
Judgment for the defendant.