Davis v. Inhabitants of Bath , 17 Me. 141 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

The act of 1837, c. 265, provides, that the portion of 'the public money of the United States, which might be received of the Treasurer of the State, should be deposited with the several cities, towns and plantations, upon the terms and conditions therein'prescribed. It was subject to be reclaimed, for which adequate provision was made; but in the mean time the use of the money was to remain with the towns, it was not a special deposit for safe keeping merely, but it was a general deposit, imposing on the towns the obligation of returning an equal amount.

It was however deemed proper that the use of the money should be subject to public regulation. Accordingly the towns were empowered, either to loan the money, on safe an'd ample security, or to appropriate it for the same purposes, for which they have a right to raise money by taxation. In either case, they remained liable to the State. It still existed, in the eye of the law, and was represented by the security given by individuals, or by the obligation of the towns to replace the money in the treasury by taxation, from which they may have been relieved for a time, by the appropriation of that, which had been furnished by the public.

Under the act of 1837, the action of the towns was limited to the use of the money, and could not affect the principal. That had not become their property, or subject to their final disposition. Then came the act of 1838, c. 311, which relieved the several cities, towns and plantations from all obligation to refund the money, which had been deposited with them respectively. And this last act authorized them to make a definitive disposition of it. They were to distribute it per capita, or to appropriate it to any other purpose, for which it might be lawful for them to raise money by taxation. Under the first act, the towns received it as a deposit, under the second, they were entitled to retain it as a gratuity.

It was competent for the legislature, to determine in what manner their bounty should be enjoyed. It might be shared by all in common, or it might be appropriated to any lawful municipal purpose. In pursuance of this authority, the inhabitants of the town of Bath, at a legal meeting, duly called to act upon the subject matter, voted to distribute, per capita, the surplus money belonging to the town, under the act of 1838. The article itself, as well as the vote founded upon it, embraces the whole surplus money, received by the town. Upon this vote in our judgment, the town were bound to distribute the amount received, whatever disposition they had previously made of the use of the fund, to which alone their power previously extended. According to the agreement of the parties, by which all formal objections are waived, the plaintiff is to have judgment for his just proportion of the whole fund.