Bussey v. Gilmore , 3 Me. 191 ( 1824 )

WestoN J.

delivered the opinion of the Court, as follows.

The original title of the demandant to the premises demanded is admitted; he therefore must réc.over, unless the tenant has shewn a title in himself. The title he exhibits, arises from a collector’s sale, for the nonpayment of taxes in’the town of Bangor, for the year 1832. The only objection urged against the validity of this sale, arises from the assessment, as a part of the tax for the year in question, of the sum of four hundred dollars, stipulated to be paid by the town to the Bangor Bridge Company, for certain privileges and advantages, secured by contract from that company to the town of Bangor, and to the citizens thereof. The demandant contends that, in voting this sum, the town transcended the powers incident to it in its corporate capacity. And if such should appear to be the fact, the title of the tenant fails. The counsel for the tenant insists that the town has this authority, first, from the statute of 1785, ch. 75, sec. 7, the law in force at the time of the making of the contract before mentioned, and which has been re-enacted in our revised statutes. Ami, secondly, by the effect of the act of February 27, 1807, authorizing the town of Bangor to erect abridge; and by the act of June 20,1807, incorporating the existing company.

The construction of the statute of 1785, before referred to, in relation to the authority of towns to raise, assess and collect money, is so clearly stated and so fully illustrated, in the case of Stetson v. Kempton et al. cited in the argument of this cause, that we have little occasion to say more than that we are enlirely satisfied with the principles of that case, and the deductions there drawn. The Court remark that “ it is important that it should “ be known that the power of the majority over the property, and “ even the persons, of the minority, is limited by law to such cases, “as are clearly provided for and defined by the statute, which “ describes the powers of these corporations.” By that decision, this principle did become known; and believing that it is justified, as well from considerations of public policy, as from a sound construction of the law, we have no disposition to modify or change it, if we had the power to do so, which we clearly have not. It is conceded that the authority of the town to vote and assess the sum ia question, can be deduced only from the general terms used in the statute, which, after authorizing towns to raise money for certain specified objects, adds, “ and other necessary charges.” The generality of this phrase has received in the case before referred to, a reasonable limitation. Without enumerating the objects which this term, other necessary charges, may be understood to embrace, it may in general be considered as extending to such expenses as are clearly incident to the execution of the power granted, or which necessarily arise in the fulfilment of the duties imposed by law. It is not pretended that the 'contract made with the bridge-company, was necessary to the discharge of any corporate duty- Towns are not required, nor have they the power, to provide for the erection of bridges over tide or navigable waters. The powers granted to towns are specified and defined by statute; and we have discovered no one to which a charge of this sort can be considered as incident. Without adverting therefore to the various topics, by which the injustice of this assessment has been impeached on the one side, or its utility or convenience defended on the.other, we are clearly of opinion that it is not supported by any general law in force at the time it was made, or when the contract was entered into, which it was designed to fulfil.

It remains to consider whether it is justified by the act of February ^ or of June, 1807, either by their express terms, or by fair implication. By the act of February the franchise was granted to the town ; and they were empowered to ‘ commute the toll with any person or persons, or with any corporation. And the same power of commutation is granted to the present company by the act of June. In both cases the persons or corporations, with whom a commutation might be made, must be understood to be such only as had a legal capacity to contract. The power conferred was upon the grantees of the franchise. Their competency to make the commutation was established and confirmed; but the competency of those, with whom such contracts might be made, was left to depend upon the general rules of law, unaffected by the provisions of these acts. Thus femes covert, minors, or other persons or corporations, who were before incompetent to enter into a contract of this description, must be considered as still remaining under the same disability. The acts relied upon did not enlarge their capacity, or confer upon them any new powers.

But it is said that, by the term corporation, the town of Bangor must be considered as particularly embraced ; because such a contract would be more beneficial to them than to any other corporation, and that therefore authority was, by implication; conferred upon them thus to contract, if they did not possess it before. The privilege purchased by the contract, was valuable to many of the citizens, in their individual capacity ; but the town had no corporate interest to be promoted by the immunity. The interests of other corporations of the manufacturing kind, might be directly aided by such a contract; which would enable them, at less expense, to transport their materials and goods across the bridge, and to provide for the unrestrained passage of such, as might be in their employment. The term in the first act, did not embrace the town ; for the bridge was to be their property. Nor can the term, in the second act, be considered as conferring on them any additional powers; as it is fully satisfied by limiting it to other corporations, competent to contract. The interests of the citizens of Bangor are otherwise provided for, by the provision by which they are permitted to pass free of toll, to and from public worship ; and by that which authorizes such of them as are farmers to pass free, to and from their farms.

The portion of the tax of 1822 objected to, being unauthorized by law ; and the title of the tenant therefore failing ; by the agreement of the parties, he is to be defaulted, and judgment is to be rendered for the demandant.