Kellar v. Savage , 17 Me. 444 ( 1840 )

The opinion of the Court was by

Shepley J.

The annual meeting in 1834 was notified as all previous meetings had been since the incorporation of the town in 1826. In the case of Ford v. Clough, 8 Greenl. 343, the objection, that the meeting was not notified in a mode agreed upon by the town, was considered, and it was decided to be no sufficient excuse for the omission of duty by a collector of taxes.

The collector in this case cannot be excused from the perforan anee of his duty by reason of any illegality in the prior proceedings of the town or of its officers, unless he was thereby prevented from performing it. And it does not appear, that he could not le-> gaily and safely do it.

It is objected, that the plaintiff cannot maintain the action, because he was not legally chosen treasurer. A liberal and favorable construction has prevailed to support the proceedings of towns, and this may well be the rule, when no one is injured by it, or deprived of any right; and when the object is only to require one to perform a service, which he has voluntarily assumed. Such a con-* struction of the stat. c. 260, would authorize the choice of the clerk pro tom. The statute requiring a record to be made of the persons sworn into office, is directory, and it does not prevent the fact from being otherwise proved, when there is no such record.

There can be no legal objection to the amendment made by the constable while in office ; and by his return as amended, the meeting appears to have been notified in the usual manner. Any payment made to the treasurer under such circumstances would be good. The town could not object, that he was not their agent for such purposes. The defendants can have no right to claim an exemption from the performance of their contract by alleging, that the proceedings of the town had been so defective, that others may by possibility have been injured, when they have neither suffered injury, nor been prevented from performing their own duties safely.

Exceptions sustained and a new trial granted»