Soper v. Inhabitants of School District No 9 , 28 Me. 193 ( 1848 )

Whitman C. J.

This action being for money had and received, the plaintiffs have a right to recover of the inhabitants of the district whatever money they may have in their hands, if any there be, .derived from the plaintiffs or received for them, which in equity and good conscience they ought not to detain from them. This species of action has ever been regarded as purely of an equitable nature. Moses v. Macferlan, 2 Bur. 1005.

It does not seem that the plaintiffs complain, or have any reason for so doing, that they have been compelled to pay an unreasonable proportion of the expenses of building a school house, in the district in which they reside; and the building of which, by reason of the destruction of the only one the district before had, had become indispensable. It is not pretended they were not liable to be taxed for such purpose: but the contention is, that due proceedings had not been adopted therefor; — nor is it pretended, that they had been assessed for any estate they did not own. In fact there does not seem to have been the slightest ground for believing that there was, in any respect, in connection with the building of the house, or in the assessment of the tax in question, the least deviation from what was supposed to be an imperative duty. The plaintiffs seem to be endeavoring to escape from their liability upon grounds purely technical; but, nevertheless, if such are actually to be found in the case, in reference to particulars preliminarily required to render the imposition of a tax valid, they must be allowed to avail the plaintiffs in their endeavors to avoid being responsible for their just proportion of the burthen of building a school house for the accommodation of themselves, as well as the rest of their fellow citizens of the district.

We will now proceed to consider the objections in the order in which they have been urged upon our consideration. The first is, to the proceedings of the defendants, in which it is-insisted that there was no legal evidence adduced at the trial, that any written application of any three or more of the legal' voters of the district was made to the selectmen to call the-meeting, to consider of the subject of building a school house, and the raising of the money to defray the expense of it. It is, however, agreed to be admitted, that the selectmen were furnished with such an application, if it be admissible to prove it without producing the application, or a record of it; and' that they thereupon issued their warrant for the calling of the meeting, bat without reciting such application or alluding to it. The statute concerning school district meetings docs not prescribe, that the selectmen should make any such recital, or that they should return such written request to the clerk of the district or to any other place. It was a document addressed to them, and which they might keep on their files; and it would seem to be proper that they should there preserve it; and there would seem to be a propriety in their reciting it in their warrant, by way of making an exhibit of their authority for issuing their warrant; but we cannot say that it would be indispensable to its validity, that they should do so, as the statute does not expressly require it.

This matter was alluded to in Williams v. The School Dis. in L. 21 Pick. 75, without any express decision concerning it. But the Chief Justice, in noticing it, would seem not to have been much impressed-with the necessity of such a course on the part of the selectmen. He notices that, though it did not appear by the warrant, that such application had been made, yet that it appeared aliunde that such application had been made, without intimating any doubt of the admissibility and sufficiency of such proof. In Fletcher v. Lincolnville, 20 Maine R. 439, it was objected, that it did not appear that the applicants for the school district meeting were legal voters, residing within the district; but the Court observed, “ if that fact is not to be presumed from the official action of the selectmen, which followed, it is established by the agreement of the parties ; and if the fact existed the warrant is justified.” If, then, the fact existed, also, that a written application was made to the selectmen, it would seem to follow, by parity of reasoning, that their warrant, thereupon issued, would be justified. Selectmen are officers of a highly responsible character. It is made their duty upon such applications alone to issue their warrants for the calling of school district meetings. When therefore they issue their warrants for such meetings, specifying the purposes therefor, there would seem to be the highest degree of propriety in presuming, that they had proceeded upon due application therefor. Selectmen are authorized to call town meetings, on the application of ten or more of the qualified voters in writing, for any special purpose, but it is believed not to be usual in calling any such meeting to state any thing more than the purposes for which it may be called. There can scarcely be a doubt that meetings so called would be held to be legal.

The next objection is, that the return of the officer, on the warrant for calling the meeting, did not expressly state, that the places at which notices were posted were public places, one of them being the school house in the district; the statute requiring that the notices should be published in two or more public places in the district, one being on their school house, if any there he. But the case shows that the school house in this district had been consumed by fire ; and the return states, that the notices were posted at four different places in the district, one being at a meeting house, one at the post-office, one at the sign post, (meaning doubtless at the guide post,) where two public roads formed a corner, and one at a blacksmith’s shop, all well known to be public places in a country neighborhood, to which the people are accustomed to resort. The decision in Fletcher v. Lincolnville shows, that under such circumstances, this objection is not well founded.

We come now to the objection principally relied upon by the plaintiff: and it is, that there was no proper vote authorizing the raising of the money by assessment, necessary to defray the expense of erecting the school house. All the votes of the district were passed at one and the same meeting, though partly at the adjournments thereof. On the tenth day of May, 1845, when the meeting commenced, it was voted, that a sufficient sum should be raised “ to defray all the expenses incident to the building of said house.” The adjournments were from time to time till the 8th December of the same year, at which time the house had been built and finished, as reported by the building committee, with the amount of the charges therefor, which report being accepted, and the amount necessary to defray the expenses of building the house, the clerk of the district, thereupon, made his certificate to the assessors of the town, that, at said meeting, it was voted to raise the sum necessary to defray the building of the house, the precise amount of which was $213,38. These proceedings, taken together, were perfectly intelligible, though perhaps not in the most appropriate form. There was a vote to raise the requisite amount, and that amount was precisely ascertained, and when ascertained by the actual expenditure for the purpose, instead of a conjectural estimate, it might well bo considered as being voted to be raised.

In the proceedings of our numerous and various municipal corporations we ought not to look for a scrupulous observance of the most approved formalities. If their proceedings are in substance what they should be, and intelligible, it would be mischievous to set them aside for the want of technical formality. The intention of the voters of the district is perfectly apparent in the case before us, and the certificate of their clerk was in conformity thereto; and on the whole we do not perceive, but in equity and good conscience, the defendants should be allowed to retain the amount obtained from the plaintiffs.

Plaintiffs nonsuit.