Gove v. Epping , 41 N.H. 539 ( 1860 )

Bob, J.

This action cannot be maintained. In correcting the check-list, the plaintiffs were acting, not as agents, or servants of tbe town, under, its direction and control, but in an official and judicial capacity; and no promise can be implied, on the part of tbe town, to indemnify them against tbe consequences of their action. Wadsworth v. Henniker, 35 N. H. 189.

Tbe plaintiffs rely upon the express promise contained in tbe vote of tbe town. The power of towns to raise and appropriate money, is derived solely from statutory provisions, which restrict the power to certain specified objects, and other necessary charges. Votes to raise or to pay money for purposes other than those prescribed by statute, are void, and towns cannot be compelled, and, generally, will not be permitted to carry such, votes into effect. There is a broad distinction between giving an indemnity to officers of a town, or other persons, for losses sustained or liabilities incurred, in proceedings legally authorized by the town, or affecting the corporate interests of the town, and the bestowment of gratuities upon officers who have sustained losses or incurred liabilities, in the performance of official duties which do not concern the rights or obligations of the town, or upon other persons, who have met with misfortunes in their private affairs. It is not left to the unrestricted and irresponsible discretion of towns to vote gifts or to select donees; their charity is a duty defined, commanded, enforced, and regulated, and the objects of it are designated by law. A majority cannot dispose of the property of a minority in an unlimited manner. The fact that the person whom a town votes to indemnify, holds a town office, or any other office, is not the test of the right of the town to indemnify him for any act. The question is, whether he was properly authorized by the town to do the act, or whether the act was any part of the business or duty of the town, or one in which the town, as a coi’poration, is so interested that it may ratify and adopt it. Thus a town may indemnify a surveyor of highways, for liabilities incurred in the bond fide discharge of his duties, because the town, being bound to repair highways, and being responsible for defects in them, has such an interest in the subject that it can adopt the acts of the surveyoi’, acting as the agent of, and for the benefit of the town, in a matter of town affairs. His duties are the duties of the town. Bancroft v. Lynnfield, 18 Pick. 566. Votes and contracts of towns are valid when they relate to objects concerning wbicb they have a duty to perform, an interest to protect, or a right to defend. Vincent v. Nantucket, 12 Cush. 183. In the correction of the check-list, the town, in its corporate capacity, has no right, interest, or duty whatever. If the selectmen perform their duty in correcting it, the town gains nothing; and if the selectmen neglect their duty, the town is subject to no loss, penalty, or liability.

Judgment for the defendants.