Merrill v. Plainfield , 45 N.H. 126 ( 1863 )

Sargent, J.

The bill asks for a perpetual injunction to restrain the defendants from paying to a former board of selectmen of Plainfield the expenses incurred by them in defending themselves against prosecutions for alleged misconduct in the management of the check list of that town, while acting as selectmen thereof. The particular facts upon which the plaintiffs rely are stated in the bill. All the defendants, except the town of Plainfield, were defaulted at the first term, and as to them the bill is taken pro confesso.

The town of Plainfield denies none of the allegations in the bill, except the legal ones that the town in its corporate capacity had no right, interest, or duty in the management, preparation, regulation and correction of the check list of legal voters in said town, by its former board of selectmen, and that the vote of the town to pay said board the expenses incurred by them in defending themselves against prosecutions for alleged misconduct in the management of the said check list, was unauthorized, illegal and void. But it alleges that the town of Plainfield, had in its corporate capacity a real pecuniary, as well as other interest, right, and duty in the management, preparation, and correction of the check list of the legal voters of said town; and that the vote of the town aforesaid, was lawful and valid.

There is a motion on both sides that the court reject all the portions of the bill and answer, which merely state conclusions or inferences of law, and these motions are properly made. Por, although it may often be convenient to state such conclusions of law in pleading, to make the matters of fact more intelligible, yet, strictly speaking, arguments, or inferences, or matters of law ought not to.be stated in the pleadings, and if stated in the bill, they will not be taken as admitted though - not denied in the answer, and though stated in the answer and not denied by the replication, yet the plaintiff will not be held to have admitted them, if in either case the facts on which these conclusions are founded, and from which they are drawn are properly denied, or avoided by an allegation of new facts. 1 Daniels’ Ch. Pr. & Pl. 601 and 602, and cases cited; Murch v. Concord Railroad, 29 N. H. 33.

Let us then see what facts are admitted. 1. The town of Plainfield has voted to pay the sum specified,- and for the purposes specified, to said former selectmen, at a legal meeting, duly notified and holden for that purpose.

2. That all the costs, charges, and expenses, thus voted to be paid by the town, were incurred by said selectmen in defending themselves against certain prosecutions and indictments against them for alleged official misconduct in regulating, &c., the check list of legal voters in said town.

3. That the plaintiffs are residents and tax-payers in said town, and that they fear said money will be paid over according to said vote, unless the town and its present officers are restrained by injunction.

These facts are admitted by the answer, and it alleges the additional fact, that the former selectmen were discharged in some way, in all these prosecutions, &c., and that they conducted in good faith and according to their best judgment and ability, and that they decided the questions submitted to them correctly. This fact not being denied is to be taken as admitted. The answer also alleges that there are from time to time, and have been for many years, many transient persons resident in said town of Plainfield, who have little or no property taxable in said town, and who have no permanent interest in said town or its prosperity, and whose votes may often affect injuriously the pecuniary interests of said town. This fact is admitted because not denied.

It is claimed by the defendant that this gives the town such a direct pecuniary interest in the regulation of the checklist, as to authorize them to indemnify their selectmen against the expenses of criminal prosecutions for alleged official misconduct in the regulation of the check list. It has been held that a town may indemnify a surveyor of highways for liabilities incurred in the bona fide discharge of his duties, because the town is bound to repair highways, and is responsible for defects in them, and therefore has so direct an interest in the subject that it can adopt the acts of the surveyor 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.

So towns may bind themselves by vote to indemnify a collector of taxes from the costs and expenses of defending actions brought against him for acts done in the performance of his duties, because he acts by authority of the town and as their agent, at least in collecting the taxes raised by the town; and the town may ratify and affirm his act as the act of the town. Pike v. Middleton, 12 N. H. 278.

But it has been equally well settled that in case of officers of the town who act not as the agents or servants of the town, but in a judicial capacity, .where the town has no direction or control of them, is not responsible for their fidelity, gains nothing by their diligence, and loses nothing by their carelessness, where the duties are imposed specifically by statute on the officer, and the town has no duty to perform, no right to defend, and no direct interest to protect, the town cannot properly indemnify the officer in the discharge of his duties, and any attempt to do so, any vote or contract to that effect, will be void. Anthony v. Adams, 1 Met. 284; Stetson v. Kempton, 13 Mass. 272; Parsons v. Goshen, 11 Pick. 396; Vincent v. Nantucket, 12 Cush. 103; Martin v. Mayor of Brooklyn, 1 Hill, 545, 551. And this applies especially to the case of selectmen in the correction, &c., of the check list of towns under our statute. Wadsworth v. Henniker, 35 N. H. 189; Gove v. Epping, 41 N. H. 539.

Nor is there any fact stated in the answer in this case which can affect the result. Upon the factá as stated, the interest of the town is altogether too remote and uncertain. The interest of the town would in that case be not in having certain names put on or kept off the check list, but in the way such persons might chance to vote on certain questions, provided they were allowed to vote at.all. It must be some direct pecuniary interest in the act done or to be done, that warrants the town in indemnifying its officers against criminal prosecutions for alleged misconduct. In the correction of the check list the town as such has and can have no duty to perform, no right to defend, and no direct interest to protect.

We consider the cases of Wadsworth v. Henniker, and Gove v. Epping, supra, as conclusive upon this case, and we see no reason to overrule those decisions, or to question their authority. And as the town by this vote undertook to appropriate money in a manner unauthorized by law, any person who is a tax-payer in town and liable to be assessed for any part of such sum, may properly interfere in the way these petitioners have done, to prevent its payment and misapplication.

The prayer for a perpetual injunction is therefore granted. ■