Sawyer v. Manchester & Keene Railroad , 62 N.H. 135 ( 1882 )

It must be taken, for the purposes of the case, that the defendants built and completed the railroad, relying in good faith upon the vote of the town as originally recorded by the town-clerk, but that the actual vote was as expressed in the amendment of the record allowed by the court. The question of chief importance is, whether the amendment can be properly allowed against the objection of the plaintiffs, and without the defendants consent.

Towns have frequent occasion to transact business which their ordinary officers have no power to perform, and which can be done only by direct corporate action, or by special agents under authority conferred by such action. G. L., c. 37; Underhill v. Gibson, 2 N.H. 352; Andover v. Grafton, 7 N.H. 298; Carlton v. Bath, 22 N.H. 559; Rich v. Errol, 51 N.H. 350.

Direct corporate action must be taken by vote in open town-meeting, and a majority controls. The votes may be so nearly equally divided, that, with or without polling, it is difficult to determine with certainty what is the voice of the town, and the party declared defeated may honestly believe the declaration erroneous, as it possibly may be in fact. Motions and resolutions are not always presented in writing, and they may be amended in various particulars before their final adoption. The exact language in which they are expressed is generally material and important. If, whenever the action of the town is put in issue, it were left to be determined on the testimony of those present at the meeting, in many cases it could never be ascertained with reasonable certainty: the transaction of business dependent upon it would be impracticable, and in all cases the inconvenience would be intolerable. For this reason, among others, the law provides that in every town-meeting there shall be two officers sworn to the faithful discharge of their duties, — a moderator, who is required to "make a public declaration of all votes passed" (G. L., c. 39, 8. 3), and a town-clerk, who is required to "record all votes passed by the town." G. L., c. 40, 8.1. The record made by the clerk is conclusive of the facts therein stated, not only upon the town, but upon all the world to long as it stands as the record. Its accuracy cannot be drawn in question collaterally. It can be contradicted or impeached only in proceedings instituted directly for the purpose, and to the end that it may be corrected. So long as it is in existence, and can be produced, it is the only competent evidence of the action of the town. If it is destroyed or lost, parol evidence may be received to show what it was, but not to prove what the vote was except in so far as such proof may tend to establish the contents of the record. Pickering v. Pickering, 11 N.H. 144; Greeley v. Quimby, 22 N.H. 335; Harris v. School District, 28 N.H. 66; Orford v. Benton, 36 N.H. 403; Farrar v. Fessenden, 39 N.H. 268; Hampstead v. Plaistow, 49 N.H. 96; Railroad v. Peterborough, 49 N.H. 294; Bell v. Pike,53 N.H. 473; Hill v. Goodwin, 56 N.H. 441; Saxton v. Nimms, 14 Mass. 320; Thayer v. Stearns, 1 Pick. 112; Taylor v. Henry, 2 Pick. 397; Manning v. Gloucester, 6 Pick. 6; School District v. Atherton, 12 Met. 105; Mayhew v. Gay Head, 13 Allen 129; Morrison v. Lawrence, 98 Mass. 219; Andrews v. Boylston, 110 Mass. 214; Halleck v. Boylston, 117 Mass. 469; Moor v. Newfield, 4 Me. 44; Samis v. King, 40 Conn. 304, 305; People v. Adams, 9 Wend. 333; People v. Zeyst, 23 N.Y. 140.

It is immaterial whether the clerk in making the record act as the agent of the town, or as a public officer in the performance of a duty imposed by law. At any time before the rights of third persons have attached, a town may rescind its votes, or the record thereof, if erroneous, may be amended in accordance with the facts; but votes cannot be rescinded to the prejudice of rights which have accrued under them. Mitchell v. Brown, 18 N.H. 815; Pond v. Negus, 3 Mass. 230; Damon v. Granby, 2 Pick. 345; Nelson v. Milford, 7 Pick. 18; Hunneman v. Grafton, 10 Met. 454; Withington v. Harvard, 8 Cush. 66; Hall v. Holden, 116 Mass. 172; Curnen v. The Mayor, 79 N.Y. 511. 1 Dill. Mun. Cor., ss. 228, 232, and cases cited. The question now is, whether the court can properly permit the erroneous record to be amended according to the truth, to the destruction of rights acquired under it in good faith, without notice of the error. Mistakes are inevitable, and their causes numerous. Considering the noise and confusion not unfrequent in town-meetings, the liability of the moderator to misunderstand motions verbal]y submitted, or to err in declaring the result; of the clerk to mistake the declaration of the moderator; to misconceive the motion or the amendments adopted; or to fail to recollect or to record the exact language, — the wonder is that errors are not more frequent.

To permit the record to be altered or amended in accordance with facts found upon the testimony of witnesses, after individuals have dealt with the town and invested their money, or performed labor upon the faith of the vote as recorded, would produce the same mischief as ii no record were required. No one could safely engage in transactions with a town, or with its special agents, without first ascertaining the accuracy of the record. In attempting to do this, the same difficulty would be met as if there were no record. An appeal to the recollection of those who were present when the vote was passed would generally afford the only means by which its truthfulness could be tested. The officers of the meeting might pronounce it correct, but their recollection would be no more authoritative, and might be no more reliable, than that of others. Should every person present be consulted, and concur in declaring the record right, the assurance that it would not be shown to be incorrect when long afterward the town should be called upon to perform its contract might not be materially fortified. They might all be mistaken, and, with memories subsequently refreshed by circumstances, remember that they were mistaken. The possibility of such unanimity, both in the error and in its correction, is doubtless remote; but the mischief arising from the not improbable conflict of recollection would be little less. Men naturally and unconsciously incline to believe what they wish to believe — what it is for their interest that the truth should be. The most intelligent, conscientious, and disinterested witness to long past transactions often finds it difficult, if not impossible, to distinguish inference from recollection, — to separate facts which he comes to by a process of reasoning, from those which he remembers, — and, if his personal interests are concerned, is not unlikely to reach a conviction that he recollects what in truth he only argues or infers from other facts must have existed. For these, and various other causes, the weight of procurable testimony might often be against the verity of the record when brought in issue long after the transaction dependent upon it, although at the time of the transaction its accuracy was confirmed by all the obtainable evidence. In all cases the essential element of certainty would be wanting. Although the town's recorded vote should authorize the selectmen or special agents to borrow money, to employ counsel, or to buy or sell a town farm; should provide for the funding of its debt, the establishment of a library, park, or cemetery, the publication of an early history of the town, the erection of a monument, or for any other thing within its power (Gen. Laws, c. 37), — no one could lend his money, act as counsel, buy of or sell to the town a farm, publish a town history, erect a monument, or render other services apparently warranted by the vote, with a certainty that he could hold the property he bought, recover the money he lent, the stipulated consideration for the property he sold, or compensation for his services, and by no care and prudence on his part could he make it certain. After the most painstaking and exhaustive examination in his power to make, his rights would still depend on the uncertain result of a future judicial finding of what the town's vote actually was, to be made necessarily upon the direct testimony of more or less hostile witnesses, in connection with the evidence afforded by surrounding circumstances, and finally determined by a balance of the probabilities. Such a state of things would be as damaging to the corporations as to the individuals dealing with them; as detrimental to the public welfare as to private rights. Saxton v. Nimms, 14 Mass. 320, 321; People v. Zeyst, 23 N.Y. 145, 146. It makes no substantial difference whether the record may be impeached or modified by means of an amendment founded upon extrinsic evidence, or by such evidence without an amendment: the practical result in each case is the same. A record not conclusive until it is proved to be right, not reliable unless it is shown to be correct, would be no better than no record, and its tendency to mislead might make it worse than none. In the language of Ladd, J., in Bell v. Pike, 53 N.H. 478, — "For all the practical uses of a record, it is no record at all. It lacks the fundamental attribute of verity, without which the first and most important definition of a record is not answered. It cannot form the basis of action anywhere, or for any purpose. It leaves the truth to be ascertained by an investigation of the antecedent facts upon which it purports to be based, as much as if nothing had been written." The law requires a record to the end that those who may be called to act under it may have no occasion to look beyond it; to avoid the mischief of leaving municipal corporate action to be proved by parol evidence; to make it certain that rights which have accrued under such action shall not be destroyed or affected by the always fallible and often wholly unreliable recollection of witnesses, however truthful and intelligent they may be. For similar reasons the law requires conveyances of land, wills, certain contracts, and legislation to be in writing.

When a town by its corporate vote makes an offer or proposition, to be accepted or rejected by a person at his pleasure, substantial reasons might be given for requiring it to see, at its peril, that the proposition is correctly stated in the record, and for holding that after the recorded offer is accepted and acted upon the town is estopped from amending it, or from availing itself of an amendment made according to the fact. New Havenc. Railroad v. Chatham, 42 Conn. 465. However this may be, and conceding that a town is no more responsible for the action of the clerk than is any person whose interests may be affected by the record, there is no reason why towns should stand in a more favorable position in respect to amendments than individuals who deal with them, or have occasion to act on the faith of the record. Amendments of the record upon which a tax title is founded, of levies upon execution, or of a sheriff's return, are not allowed, as against prior purchasers of the property in question for a valuable consideration in good faith, and without notice express or implied, of the facts sought to be introduced into the record. Gibson v. Bailey, 9 N.H. 168; Whittier v. Varney, 10 N.H. 291; Bean v. Thompson,19 N.H. 294; Cass v. Bellows, 31 N.H. 511; Avery v. Bowman, 39 N.H. 393; Bank v. Webster, 44 N.H. 264; Jaquith v. Putney, 48 N.H. 138; Williams v. Brackett, 8 Mass. 240; Emerson v. Upton, 9 Pick. 167; Johnson v. Day, 17 Pick 106; Hovey v. Wait, 17 Pick. 196; Freeman v. Paul, 3 Me. 260; Means v. Osgood, 7 Me. 146. And generally amendments are not allowed to affect the vested rights of third parties, or where injustice will be done to any one. Chamberlain v. Crane, 4 N.H. 115; Goodwin v. Smith, 4 N.H. 29; Bowman v. Stark, 6 N.H. 459; Smith v. Moore, 17 N.H. 384; Wendell v. Mugridge,19 N.H. 109; Baker v. Davis, 22 N.H. 27. No reason has been assigned, and none is perceived, for exempting towns from the operation of the general rule. These considerations afford a sufficient answer (if there were no other) to the suggestion that "no decision has been produced which goes to the extent of holding the town estopped from having the record put right, merely because it has been trusted to and acted upon." New Haven c. Railroad v. Chatham, 42 Conn. 465, was an application for a mandamus to compel the defendant town to guarantee certain bonds issued by the plaintiffs. In 1871 the legislature authorized the town to guarantee the bonds, "provided, however, that at any town-meeting called for acting under the provisions of this resolution, the vote upon the question of guaranteeing said bonds of said railroad company shall be taken by ballot." At a meeting called for the purpose, October 14, 1871, a resolution inserted in the warning, directing the selectmen to guarantee the bonds on certain conditions, was adopted. The vote was not taken by ballot, and was recorded as follows: Voted, that the resolution prescribed in the warning be adopted. Yes, 178. No, 86." The plaintiffs, in good faith, relying upon the recorded vote, and without notice that it was not taken by ballot, made contracts for building their road, issued the bonds and delivered them, together with an order on the defendants for the guaranty, to the contractors, who in like good faith received them, performed work, furnished materials, and expended money in reliance upon the promised guaranty. In November, 1874 after the plaintiffs had fully performed the conditions stated in the resolution, and the defendants' selectmen had refused to execute the guaranty, this application was filed. The superior court, at the April term, 1875, upon the petition of an inhabitant of the town, ordered the record of the vote to be amended by making to it this addition: "Said vote was taken by a division of the house and a count, and not by ballot." The defendants were held estopped from claiming that the vote was not taken by ballot, or from availing themselves of the amendment ordered by the superior court, and a peremptory mandamus was granted. See, also, Moore v. Mayor c. of New York, 73 N.Y. 238.

The building and completion of the railroad upon the faith of the recorded vote, and according to its provisions, constituted a contract executed on the part of the defendants, as where a reward is offered upon certain conditions, and an individual relying upon the offer performs the conditions. Janvrin v. Exeter, 48 N.H. 83. It is as if the defendants and the town had executed a written agreement — the defendants to build the railroad in the time and manner expressed by the vote, and the town in consideration thereof to pay the sum stated — and the defendants had performed their part of the contract. In an action brought by them to recover the money, parol evidence could not be received to show that a stipulated condition was omitted by mistake of one party, or even of both, or in any way to contradict or modify the terms of the agreement. If the writing did not express the actual contract, the only remedy would be by bill in equity to reform it.

In Chamberlain v. Dover, 13 Me. 466, and Turnpike v. Pomfret,20 Conn. 590, the only cases cited as holding that an amendment may be properly allowed in such a case as this, it does not distinctly appear that the plaintiffs acted upon the faith of the original record, or that they did not know the facts to be as stated in the amendment. The amendment was made by the clerk of his own motion The court held that acting at his peril, he might properly do so; that the amended record must be taken to be the true one, and conclusive of the facts, until, if false, corrected in proceedings instituted for the purpose. It has never been held in this state that the clerk may amend the record, except under the direction of the court, and upon a showing that justice requires it. Gibson v. Bailey, 9 N.H. 176; Low v. Pettengill, 12 N.H. 337; Cass v. Bellows, 31 N.H. 501; Pierce v. Richardson, 37 N.H. 311.

The position, that the vote as recorded could not be taken under the article in the warrant; that the town could only vote to dismiss it, or to give a greater or a less per cent. of its valuation upon the precise conditions and limitations expressed in the article, — cannot be sustained. The statute requires that "the subject-matter of all business to be acted upon shall be distinctly stated in the warrant." G. L., c. 38, 8. 2. The purpose of the requirement is to inform the inhabitants of the business upon which they are called to act in the meeting, — "to bring before the town substantially and intelligently the subject with which it has to deal." Tucker v. Aiken 7 N.H. 113, 125, 126; Pittsburg v. Danforth,56 N.H. 272; Matthews v. Westborough, 131 Mass. 528. Here the matter to be acted upon was the question of aiding the defendant to build its railroad. Gen. Sts., c. 34, s. 16. The town might grant its aid upon such terms as it saw fit. If the limitations expressed in the article had been omitted, all or any part of them might have been incorporated in he vote. Their insertion did not preclude the town from rejecting them, or from granting aid upon other and different conditions. A vote to build a town hall thirty feet by fifty, under an article to see if the town will build one forty feet by sixty, might as well be held unwarranted. Converse v. Porter,45 N.H. 395; Child v. Colburn, 54 N.H. 71; Pittsburg v. Danforth, supra; Haven v. Lowell, 5 Met. 35, Hadsell v. Hancock, 3 Gray 526; Sherman v. Torrey, 99 Mass. 472; Reed v. Acton, 117 Mass. 384, 390; Wood v. Jewell,130 Mass. 270; Bartlett v. Kinsley, 15 Conn. 332.

It is urged that the language of the article in connection with that of the vote was of itself sufficient to put the defendants upon inquiry, and that they are therefore chargeable with notice of the error in the record. It is not perceived how anything contained in the article could naturally or legitimately tend to show, or lead to a suspicion, that the record of a vote which could lawfully and properly be taken under it was erroneous; how the absence in the record of a clause in the article, which for good reasons might properly be rejected, is calculated to lead to the inference that it was erroneously omitted. The recorded vote provided for the gratuity in case the road should be completed in a reasonable time, which might be longer or shorter than the time mentioned in the article. It was# the same in legal effect as if the words "to be completed in a reasonable time" had been added to the record. For adopting this limitation rather than that specified in the article, or any other fixed and definite time, the town might have satisfactory reasons. It was not so extraordinary, unreasonable, or unnatural action as upon its face to excite suspicion that it could not have been taken.

It is suggested that the granting of the amendment rested in the discretion of the presiding justice who allowed it, and that the question of discretion is not reserved and cannot be revised. Whether upon the facts stated the amendment can be allowed, is a question of law; if it can, whether justice requires that it should be, is a question of fact to be determined at the trial term. The first question only has been considered.

Motion for rehearing denied.

STANLEY, J., did not sit: BLODGETT, J., dissented: the others concurred.