Inhabitants of Augusta v. Leadbetter , 16 Me. 45 ( 1839 )

The case was continued for advisement, and the opinion of the Court subsequently drawn up by

Shepley J.

The promissory note upon which this action is brought, was payable to William Armstrong or order, and by him indorsed, directing it to be paid to the plaintiffs or their order. This is sufficient to pass the property to them, unless there is some legal objection to their title, arising out of their want of capacity to take for the purpose for which it was received, or out of the manner in which it was acquired. Although it was received before the town agent knew, that the defendant would institute a suit against the town, yet it appears to have been taken in contemplation of such an event, which took place before this action was brought. Towns are authorized to commence and prosecute suits and may for this purpose appoint agents or attorneys, c. 114, sec. 7. The powers of the agent are limited only by the capacities of the corporation and by the nature of his employment. The selectmen arc also agents to manage the prudential affairs of their towns, but they cannot assume powers, which do not belong to the towns for which they act. The law also contemplates, that towns may be the lawful holders of notes and other securities, but such power does not enlarge the capacities of towns, and enable them to take them for other purposes than those provided for by the law. This is not one of those cases in which the treasurer is empowered to sue in his own name; for it is only when the note or security is given to him, or to his predecessor, in their official character, that he can sue in his owm name. c. 59, sec. 26. The action may then be well maintained in the name of the town, if the note was received for purposes coming within the legal action of the town, the title being lawfully acquired. Towns are obliged to keep their highways in repair, and are subjected to the payment of damages to the party injured by their neglect. And they may use all lawful means to defend themselves against the recovery of damages, and to provide for the adjustment and payment of any such damages. For this purpose they may borrow money, or purchase grain or other merchandise. For they would be acquiring property for the very purpose of enabling them to perform a duty enjoined by law. Can there be any doubt that for such a purpose the plaintiffs might by a legal vote have acquired the property in the note now in suit ? If not, there can be none here, and the objection fails arising from their w'ant of capacity to take. Whatever of authority could be legally exercised by the agent and selectmen existed in this case. The selectmen might draw an order to pay damages recovered against the town and thus bind the town. They and the agent might settle the suit brought by the defendant against the town, and bind the town by their acts. If they have power to accomplish an object have they not the choice of the legal means by which it may be done ? If they may settle and pay the defendant for the injuries, which he has sustained, may they not, if his carriage have been injured, procure materials and cause it to be repaired ? When a traveller’s horse has been injured may they not procure another for him to prevent delay and additional damages ? And if they may do these things may they not at his request purchase from one of his creditors his note and deliver it to him in payment ? And can his consent enlarge their power and authorize them to do that, which without it, they could not do ? If the power to purchase a note for such a purpose be admitted, it no more implies a general power to traffic in notes, than the power to purchase materials and repair a carriage implies a general power to trade.

It has been decided that overseers of the poor may bind the town by their promise to pay for the support of a pauper chargeable to their town. Belfast v. Leominster, 1 Pick. 123. And that the selectmen acting as overseers may bind their town not to take advantage of a defect in a notice respecting a pauper. Hanover v. Eaton, 3 N. H. Rep. 32. And in this state, that the selectmen acting in that character may bind their towns by advancing money and prosecuting a suit to enable a female to charge one as the putative father of her bastard child, to avoid a contingent liability for its support. Dennett v. Nevers, 7 Greenl. 399.

The selectmen while acting upon the prudential affairs of their towns would upon the same principles possess a similar authority. The cases of Davenport v. Hallowell, 1 Fairf 317, and Blake v. Windham, 13 Maine R. 74, and Willard v. Newburyport, 12 Pick. 227, exhibit the exercise by town officers of powers quite as extensive, which seem to have been approved.

In the case of Griswold v. Stonington, 5 Conn. R. 367, it was decided, that the selectmen had not power virtute officii to submit a claim on the town for the support of a pauper to arbitration; upon the principle, that where special powers are given by statute as in that state, the delegation of such special power excludes the general authority which might otherwise exist. The principle is doubtless correct, but it is not applicable to our' legislation, where their powers in relation to the management of the prudential affairs of their towns are not defined by statute.

Exceptions overruled.