Hartwell v. Inhabitants of Littleton

Shaw C. J. drew up the opinion of the Court. The first question is, whether the town clerk of a former year, who does •not now hold that office, can be allowed to come in and amend the record of a former year made whilst he was in that office ; and the Court are of opinion that he cannot. It has been held, in Welles v. Battelle, 11 Mass. R. 477, that when a clerk continues in office several years, by repeated annual electioni, he may amend the record of a former year, notwithstanding an election has intervened, and though he does not hold the office under the same appointment. But we think there is an obvious distinction in principle, between the two cases. In the latter, the clerk not only knows the fact, in relation to which the amendment is to be made, which is a circumstance com mon to both, but he still enjoys the confidence of the town, is by their vote entrusted with the custody of their records, and is held responsible for their purity and correctness under the sanction of his official oath, and all such other guards as the law has thought it necessary to prescribe, in the case of a clerk actually in office. The intervening election is substantially a continuance of the clerk in the same office. The next question turns upon the construction of the statute for regulating schools ; St. 1826, c. 143, § 7. It provides that the school committee shall determine what class-books shall be used, and shall procure, at the expense of the town and to be paid for out of the town treasury, a sufficient supply of such class-books &c. It has been contended in behalf of the defendants, that under this clause, a committee are only authorized to make a contract with some third person, for the purchase of books, on the credit of the town, and that they cannot purchase the books with their own money and charge them to the town, so as to make themselves the creditors. But we can perceive nothing in the terms or the spirit of the statute, which requires this limited construction. The words “ procure at the expense of the town,” are broad enough to cover both modes of obtaining books. In the present case, it appears that the books were delivered to the scholars at the wholesale prices. In many cases it would be more convenient [233] and more economical for the committee to purchase the books and pay for them, than to get them on credit, and the restraint upon the power of the committee in this respect, contended for by the defendants, would be prejudicial to towns. The salutary rule of law apd equity, that an agent to purchase cannot himself be the seller, does not apply. An agent to procure goods, unless expressly restrained to a purchase on the credit of his principal, may purchase and pay for the goods, and charge the cost to his principal. Another exception is, that the committee did not give notice of the books they had directed and determined to be used as class-books, and of the place, or places, where the books which they had procured might be obtained. In regard to the first part of this objection, it seems sufficient to say, that the statute does not expressly require notice. The act of this committee in this respect, like all other acts of similar bodies exercising a public trust, might be expected, without any express legal requisition, to be made known in the way proper to carry it into effect. Here it was made known to all those who were interested, through the schoolmasters. As to the other branch of the exception, that they did not comply with the requirement of the statute in giving notice of the place where the books might be obtained, it seems to us to be answered by the proof. It is shown that they were deposited with the masters and notice thereof given to the schools. But the most material question is, whether the evidence offered by the plaintiffs from the town records, was sufficient, without the amendment, to prove that they were elected a school committee. After they had acted and been recognised as such through the two years, after their claim as such committee had been liquidated by the agents of the town, and an order drawn on the treasurer, and more especially after the assessors, another board of the servants and agents of the town, had received their return of the names of the parents and guardians to whose children and wards books had been delivered by the plaintiffs as such committee, and who had assessed the cost of the same on the persons liable, which assessment could be legal and valid only on the assumption that the plaintiffs were the school committee, and after the [234] town had assessed the full amount for their reimbursement, part of which had been received and the residue was in the process of collection, it would seem too late to go back, and deny that the plaintiffs were such committee. An individual could hardly he heard to make such a genial under such circumstances ; but perhaps a principle somewhat less strict should be applied to corporations, in respect to rules in the nature of estoppels. But we have not thought it necessary to give any opinion upon these questions, because we are satisfied, from an examination of the town record, as it stands without amendment, that it proves the election of the plaintiffs as the school committee. It was the record of the year 1830 that was amended, with probably a view of showing that the plaintiffs were the ■ committee of that year, and so to show that they were the persons designated in the order of May 20, 1830, as the inspecting school committee. But as the committee for the two years consisted of the same individuals, and as the record was in the same or nearly the same words, the same considerations apply to both. The record is that of the doings of the town at its annual March meeting, held by law for the choice of annual town officers. The statute requires, § 6, that towns, at their annual meeting, shall choose a committee for each school district, to be called the “ prudential committee ” thereof. The same statute, § 5, requires each town, at the annual meeting thereof, to choose a school committee, consisting of three, five, or seven persons. The meeting in question being the annual meeting for the choice of town officers, was that at which the general school committee was required to be chosen. The record details the election of other annual town officers, and among others, a prudential school committee. It then contains this entry; “ Voted to choose an examining committee of Jive. Chose William H. White” &c., the plaintiffs. The question is, whether the record designates the plaintiffs with reasonable certainty, as the school committee required to be chosen by the 5th section of the act. It is to be remarked, that the statute provides for the election of two committees, charged with various and distinct duties in regard to schools, between [235] whom all the powers of «towns are divided in relation to this subject; that the statute directs that one shall be called the “ piudential committee,” but it does not direct what the other shall be called. It is described, not named. Then if the examining committee mentioned in the record, is brought within the description with reasonable certainty, it is sufficient. As the statute requires the appointment of two distinct committees, charged with the care of schools, with different powers, as mere matter of description using the words “school committee ” would not be precisely accurate and specific. This difficulty was obviously felt by the person who made or suggested the amendment, whence the words ‘ ‘ inspecting and examining” are added to the words “school committee,” to make it specific, and bring it clearly within the statute. There being no name given to this general committee, but only a description, the question recurs, does the record describe this committee with such reasonable certainty, and show that under that description they were chosen the school committee, pursuant to the 5th section of the statute ? To ascertain this, we must look at their powers and duties, as established by the same section of the statute, providing for their election. Two of these are put forth very prominently. It shall be their duty to require satisfactory evidence of the moral character of all instructers, and to satisfy themselves by personal examination or otherwise, of their capacity and qualifications. And after-wards, it shall furthermore be their duty, among other things, to visit such school for the purpose of making a careful examination thereof, and at such examination they shall enquire &c The argument then stands thus ; the statute requires each town, at its annual meeting, to elect a committee of three, five or seven, to exercise various powers in relation to schools, and among other things, to examine the masters, and to examine the schools ; the town met to choose annual officers, and of course, such a committee ; they chose another committee, conformably to the requisitions of the statute ; no law requires the election of such a committe as an examining committee in terms, or any one, other than that for the schools, whose powers or duties would be so well designated by the word “ examining”; no other committee was chosen as the school committee re [236] quired to be chosen, by the 5th section of the statute; the five plaintiffs were chosen an examining committee ; and therefore the Court are of opinion, that the record is sufficient to prove, that by the term “ examining committee,” was intended the school committee thus required, and that the plaintiffs were elected to that office, and thus became vested with the powers and subject to the duties, of such committee. Exceptions overruled and judgment of the Court of Common Pleas affirmed.