Burgess v. Pue , 2 Gill 254 ( 1844 )

Magruder, J.,

delivered the opinion of this court.

An attempt to collect, by a seizure and sale of his property, the taxes imposed upon the defendant, in and by the taxable inhabitants of school district, No. 30, in Howard district, gave rise to this suit.

This tax, as it appears by the case stated, was imposed at a meeting which took place on the 29th July 1843, and was a tax of sixteen cents on every hundred dollars of taxable property within the district, in order to defray the necessary expenses of the district “during the past, and for the current year.” If the meeting and the proceedings, which took place on that day, were authorised by law, then the defendant in error cannot sustain the action of replevin, which was brought by him, and the proceedings in which are now' before us.

It is designed to notice the points which were raised in the court below, and in the order in which they were introduced into that court.

The first objection to this law, that it is unconstitutional, has been already over-ruled by this court, in the case between these same parties, decided at June term 1844.

One ground, on which the defendant in error insisted, that the tax could not legitimately be demanded, was, that the trustees, clerk, and others, at the preceding annual meeting, in July 1842, were not elected by ballot, but viva voce ; and the clerk did not bond. Because of this, it is contended that the said district is disorganised, and the power of the taxables suspended.

It appears by the case stated, that a notice of the meeting, which was to take place July 15th, 1843, “for the purposes of electing officers and voting a tax on the assessable property of the district, for the support of the school for the ensuing year,” was signed “George L. Stockett, clerk.'” The meeting took place, and to the proceedings of that meeting, in the election of officers for the ensuing year, no objection is taken ; but the incurable error consisted, in the election of those, of the previous year.

The minutes of the proceedings of that meeting which constitute a part of the case stated, tell us, that George L. Stockett, was nominated, and elected unanimously: and surely, from this entry we are not bound to infer, that he was elected illegally? This entry, at all events, must be one of “the matters of form,” which the Act of 1828, ch. 69, requires us to disregard.

According to the reasoning of the counsel for the defendant in error, the election must be pronounced to be void, unless the minutes state every thing to have been done, which the law requires to be done. The law says, that the election must be by ballot; and therefore, and in order to be valid, it is not only necessary that the election should be by ballot, but the omission to state on the minutes that it was by ballot, vitiates an election, to which no other exception can be taken. It will not be denied, that in some of the old cases, to which we are referred by the counsel, expressions may be found attributed to the court, which would seem to justify this reasoning. Those expressions are generally to be found in cases, where, by their own showing, the acts done were contrary to law, and seem to have been used without reflecting, that as they might be understood, they would take from us much valuable law.

The election does not appear to have been by ballot; and moreover, it does not appear that the clerk gave bond, as the act of 1825 requires. Now these objections, which are designed to take from the clerk his office, are urged in a suit to which the clerk is no party. See 7 Sargeant & Rawle., 392. Besides, the act of 1825, ch. 162, sect. 9, provides, that the clerks, &c., of each district, shall hold their office until the next annual meeting, and a new election shall be made.

Now, we find, that George L. Stockett was in the office, acting as clerk, in July 1842; and are we, in this suit, to which he was no party, and grounding our opinion upon this statement, to determine, that he was not legally in the office, the duties of which he was discharging ?

In the case of corporations it is considered, that the recording of an official bond is not essential to its validity, unless it be so expressly declared. A vote or resolution appointing an agent, need not be entered on the minutes, but may be inferred from the permission, or acceptance of his services. See Angel Ames on Corporations, 157, and the case there referred to, of Dunn, vs. Saint Andrews Church, 14 Johnson’s Reports, 118. The authority continues, “we need hardly add, that if m such case the agent is held to be duly appointed, as between the corporation and himself, a fortiori, he would be, as between the corporation and third persons.”

“Persons acting publicly, as officers of a corporation, are presumed to be rightfully in office; acts done by a corporation, which presuppose the existence of other acts, to make them legally operative, are presumptive proofs of the latter; and although the charter or act of incorporation prescribes the mode in which its officers shall be elected, and an election contrary to it, would unquestionably be voidable, yet if the officer has come in under color of right, and not in open contempt of all rights whatever, he is an officer de facto, fyc.” See Angel and Ames, 158, 159.

An act of Assembly, confers upon the mayor and aldermen of the city of Annapolis, authority to take the acknowledgment of deeds, which are designed to transfer the title to land from the grantor to the grantee. Surely a party who claims under a deed so acknowledged, is not, in order to make the deed evidence, to prove that the mayor was what he professed to be, that is, was duly elected to the office.

It seems however to be thought, that these trustees, clerks, &c., are to be regarded as special agents, deriving from the law special authority, and their acts, in order to be valid, must be proved to be, in every respect, according to the strict iettei of the law; and that the law, with respect to the acts, and the inferences from the acts of corporations, are not applicable to them and their actings. The correctness of all such notions may be questioned. In the case of the> inhabitants of the fourth school district, in Rumford, vs. Wood, 13 Mass. Reports, 193, chief justice Parker in delivering the opinion of the court, admits, that they, (the school districts,) are not bodies politic or corporate, with the general powers of corporations; and he tells us this may be said of towns and other municipal societies. He then proceeds: “they may be considered under our institutions as quasi corporations, with limited powers; co-extensive with the duties imposed upon them by statute or usage,” and he is brought to the conclusion, that in construing their acts, a liberal view should be had to the end intended to be effected. See, also, Angel and Ames on Corporations, p. 18.

These authorities, in connection with the act of 1828, ch. 169, will, it is believed, justify the court in over-ruling this and other points, which were raised by the defendants counsel, in the court below.

It is also objected, that the notice given by the clerk, declared the object of the meeting to be, “for the purpose of electing officers and voting a tax, &c., for the support of the school for the ensuing year.” To this notice the objection does not apply; but it is said, that the tax voted, was to “defray the expenses of the district; during the past and for the current year, such being the language used in voting the tax.”

What are the powers of these people, when assembled in district meeting, in regard to voting taxes ? “To vote a tax on the resident inhabitants of each district, as they or a majority of such of them as may be present, as aforesaid, shall deem sufficient to purchase a suitable scite for the school house, and to build, keep in repair, and furnish such school house with necessary fuel, books, stationary, and appendages ; and to repeal, alter, regulate and modify all such proceedings, or any part thereof, from time to time, as occasion may require.” And surely, in the discharge of these duties, it may be necessary to raise funds, in order to defray expenses already incurred, and (as required by another clause,) to “pay the salaries of such teachers.” The officer must give notice, and did give notice, of the time and place of meeting. What follows, cannot make the notice illegal, although it had not stated that all the business which was actually done, (such as acting upon claims, directing the payment of them, &e.,) would be done. It may also be observed, that between the notice and the vote, there is not that difference which is suggested. The tax to be voted, is to pay what is then due, and what it is known will be due in the course of the year: and provision for the payment of what is already due, and what in the course of the year is to become due, is made by voting a tax for the support of the school; that is, to pay debts which, no matter when contracted, are payable in the course of the coming year.

Perhaps it would be desirable to ascertain, at the begininng of the year, the amount of expense to be incurred in the course of that year, and provide for the prompt payment of it; but then, this is impossible, as it cannot be known what will be the amount of expenditures for repairs, books, fuel, &c. They must sometimes purchase upon credit, and in order to pay for what is thus purchased, it is necessary to vote a tax, which is to defray expenses during the past, as wrell as the ensuing year; and this may, with strict propriety, be said to provide for the school for the ensuing year. This too, is an answer to the fourth objection, that the tax is retrospective, and not prospective.

We perceive nothing which warrants the objection, that the tax was not voted at the annual meeting of the taxables; nor that two taxes have been laid in the same year for the same purpose; nor does there seem to be any foundation for the objection, that the sum voted as the tax, was not raised in due proportion on all the taxable property.

As to the eighth objection, it appears that the seizure there spoken of, (if in this case it can be noticed at all,) was illegal, and for that tax he is not responsible. It can furnish no objection to the vote, that a tax of sixteen cents, be laid in the year 1843.

The ninth objection assumes, that the collector is to be presumed not to be qualified, unless there be express proof of his qualification. He is an officer de facto; but if not de jure also, he is not in office. The defendant, himself, has sworn, (see affidavit ante,) that the very property for which this suit was brought, was seized by the collector, Thomas Burgess, for the school taxes, for the primary school district No. 30, of said district.

Of the last of the objections, which appear to have been relied on in the court below, notice has already been taken, and according to our view of such objections, this cannot be sustained. Besides this, it seems to have no foundation in law. The charter does not forbid the appointment of one of the trustees to be the clerk. It is true, that at the meeting in August 1840, it was voted, that in the opinion of the then meeting, it was incompatible in the trustees to hold another office, and perhaps, at some meeting an opinion was expressed, that the offices of trustee and clerk are incompatible; but these votes and expressions of opinion, do not disqualify any man.

The objections, all of them, assume, either that the legislature had no right to delegate to those appointed to exercise them, the powers given to them by the act of 1825, or, that the individuals to whom those powers have been delegated, must not only conform strictly to the provisions of the law under which they act, but that the minutes of their proceedings must show all the facts which are necessary to give them jurisdiction. “It is believed, that this would not be correct, even although the law of 1828 never had been enacted. But surely the legislature had the power to pass that law, and one object of it seems to have been, to require courts, in judging of their actings and doings, to judge them by other rules than those which are sometimes adopted, in determining upon the validity of the acts of special agents, who, by the nature and terms of their authority, can do nothing which they are not expressly authorized to do. Much is left to the discretion and judgment of the individuals, who are to execute the law of 1825. In their judgment the law reposes, and from the nature of the trust, must repose great confidence; and it will presume every thing which it requires to be done by them, to be rightly done, until the person, who would impeach their conduct, can furnish legal and satisfactory evidence, that they have done acts not necessary to be done, in exercising the powers and discharging the duties which the law requires of them.

But if for any or all of the reasons, which have been noticed, the proceedings of the clerk and other officers were to be considered illegal and void, still, it would be necessary to reverse the judgment, and order a writ of procedendo; because, the case stated, (whatever might have been intended by the parties,) does not authorise the court to give judgment, either for plaintiff or defendant.

Of course, this court can give no judgment upon the statement, but reverse the judgment, with costs, and order a procedendo.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.