The first bill of liquors was bought in violation of the law of Massachusetts, and no action can be maintained for any part of it. The case does not find that any application of the amount paid had been made before the commencement of the action. It is well settled that the plaintiff's cannot now elect to apply the payments to that part of the claim which is illegal; and all the other items of the account are paid by the payments which appear in the plaintiffs' account.
So far, then, as the first item of the plaintiffs' account is concerned, the matter stands as if the action was brought to recover the unpaid part of that alone. The purchase and sale of the liquors contained in that item being unlawful, no action could be maintained to recover the price.
The principle, as well expressed by Lord MANSFIELD — Holman v. Johnson, Cowp. 341 — is, that a party cannot recover who is obliged to found his action upon his own violation of the law; and upon the same principle, says GRAY, J., in Cranson v. Goss, 107 Mass. 439 (Am. R. 45), — "It follows that, as between the parties, it is incapable of being confirmed or ratified; for, in suing upon the original contract after its ratification by the defendant, it would still be necessary for the plaintiff, in proving his case, to show his own illegal act in making the contract at first."
On the facts found and reported by the court the plaintiff cannot recover.
There is another view which may be taken of this transaction, and which leads to the game result.
The business out of which the claim arose, which is the subject-matter of this suit, was an agency established under Gen. Stats, ch. 99. This law, like all the other laws of the state of New Hampshire, is to be administered by the court fairly and impartially. It is not for us to say that we do or do not like the law.
The leading principle of this statute is the absolute prohibition of the sale of spirituous and intoxicating liquors in the state of New Hampshire, excepting for certain specified purposes. The statute makes it the duty of the selectmen to appoint an agent or agents for the sale of such liquors; and it has been held by our court that it is the duty of the town, and when by the neglect of the town it becomes necessary, it is the duty of the selectmen to provide for the agent the means of carrying on the agency. State v. Woodbury, 35 N.H. 232. When they have done this in good faith, their duty in this particular is performed. It is their duty to give the agent a written appointment which must be recorded by the town-clerk, to establish suitable regulations for the guidance of the agent, — perhaps to take from him a bond for the faithful performance of his duties, — and it seems to me that, by the terms of the statute, it is clearly their duty to watch the agents, and see that they conform to the regulations prescribed, and discharge their duties faithfully, and in particular to keep a watchful supervision of the purchases and sales, and see that the agent is deriving no *Page 99 pecuniary emolument other than the stated compensation fixed by the selectmen, which compensation is not to be increased or diminished by any increase or diminution in the amount of sales and purchases.
Thus strictly has the law endeavored to guard this matter of the purchase and sale of spirituous liquors. It proposes to pay the agent a reasonable compensation for his labor and responsibility; it provides that he shall not have any pecuniary advantage otherwise, and that no person shall make any money out of it, unless incidentally a profit may accrue to the town; and it is plain that, if the business is conducted with proper care and honesty by the agent, and diligently supervised by the town or city authorities, whose duty it is to do so, there is little chance of loss.
Such being the duties of the selectmen, it seems plain that they cannot assume the agency themselves. Neither can they appoint one of their number to be the agent, much less authorize one of their number to make purchases without any written appointment duly recorded.
It seems to be now conceded that the authority of selectmen is special and limited, and not general. It is entirely the creation of statute law, under the construction of the courts. Their authority being thus limited and special, and a creature of the statute, it is plainly the duty of all persons dealing with the selectmen in that capacity to take notice of the extent and limits of their authority. Sanborn v. Deerfield, 2 N.H. 253; Andover v. Grafton, 7 N.H. 300; Rich v. Errol, 51 N.H. 350; Backman v. Charlestown, 42 N.H. 125.
Now, one of the limitations of the selectmen's authority, as the town's managers of its prudential affairs, is, that the act done must be one necessary for the town to do in the discharge of its duties or in the protection of its rights.
It is clear that the purchase of spirituous liquors, either on the credit of the town or otherwise, is not one of these acts within the scope of the selectmen's authority. We have seen that when an agent is pointed, and provided with the means of carrying on his agency, which may be by authorizing him to buy on the credit of the town, if necessary, the duties of the town and of the selectmen in this direction have been performed; and all that the selectmen have to do is to see that the agent does his duty, and, if he fails, to revoke his agency and appoint another.
If the selectmen can be these agents, or can delegate this agency to one of their number, who, then, is to exercise that power of revision which the statute confides to them? Quis custodes custodiet? The statute provides that the business of the liquor agency shall be done for a fixed compensation, which is not to be enlarged or diminished by any increase or diminution of the amount of business. From what source, then, shall the selectmen derive their compensation for this service of purchasing liquor? If the object of this statute is to be fulfilled, and the citizens of towns are to have placed within their reach the pure and unadulterated liquors which only would be fit for the mechanical, medicinal, chemical, and religious purposes for which alone the statute *Page 100 authorizes their sale, the duty of purchasing these liquors would be most onerous, difficult, and delicate. If the selectmen are to do this work they ought to receive an adequate compensation, and not to be left to rely upon the commissions paid by those from whom they purchase, and which at present seem to be the only source from which they can derive their pay. It seems to me certain that the selectmen cannot, under the statute, lawfully buy spirituous liquors for the town agency, on the credit of the town, especially when, as in this case, there was no legally appointed agent; and for liquors thus bought the town cannot be compelled to pay. The plaintiff was bound to take notice of the defect in the agent's appointment. Backman v. Charlestown, 42 N.H. 125.
The case of Great Falls Bank v. Farmington, 41 N.H. 32, is an authority to show that the selectmen may authorize the agent to purchase on the credit of the town, and give a note for the amount of such purchase; but the dictum that the selectmen might make the purchase was not required by the case. In the able and exhaustive discussion of the powers of selectmen, in Rich v. Errol, 51 N.H. 350, the learned judge is careful to substitute for the words "purchase of liquors" the words supply of liquors. The purchase of these liquors, then, by the selectmen, or one of their number, on the credit of the town, was unlawful; and the town is therefore not bound to pay, unless some further principle can be found by which they can be compelled to do so.
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