Town of Poultney v. Town of Wells

Hutchinson J. delivered the opinion of the Court. This is an action for money had and received, and comes up before this Court, upon a case agreed upon by the parties. By this case it appears, that the plaintiffs claim to recover in this action, a certain portion of the rents and profits of the school right, and the right chartered to the first settled minister in said Wells, from the time a certain part of Wells was, by act of the legislature of this state, annexed to Poultney. The right of the plaintiffs to recover, depends upon what the Court shall deem the extent and validity of the statute of October 31, 1798, annexing a part of Wells to Poultney, as above mentioned, in connexion with the votes of both of said towns upon the subject, and the evidence contained in the case of the acquiescence of said towns in said statute. An objection, however, is raised, that an action on the case, on an implied promise, cannot be maintained against a corporation aggregate. Such were once the decisions; and these decisions necessarily resulted from the principle, that such corporations could bind themselves only by their common seal. But in modern times, the authorized agents of a corporation aggregate bind their corporation by those acts which they perform, in pursuance of their agency; and when they thus act without the ■use of the corporate seal, the corporation are liable to an action of assumpsit, the same as individuals would be, if they employed the same agents to do the same acts. This is fully evinced by the cases referred to by Mr. Chipman, in his note on page 456, vol. 1, and especially by the case cited by the plaintiffs’ counsel, on page 459 in said note, taken from Cranch, 7th vol. 299th page, to wit: The bank of Columbia vs. the administrator of Patterson. The Court there say, “that wherever a corporation is acting within the legitimate purposes of its institution, all parol [185] contracts, made by its authorized agents, are express promises of the corporation,” “and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lieand they cite many cases, in support of these principles. In the present case, the money in contest is in the hands of the defendants, has been demanded of them by the plaintiffs, and they have refused, to pay it to the plaintiffs. If the plaintiffs have established their right to this money, as it is not evidenced by any specialty, or any corporate act under seal, reason and authority both concur to warrant their recovering the money in this form of action. In examining the plaintiffs’ claim, it appears that the town gf Wells was chartered by the governour of the late province of New-Hampshire, on the 15th of September, 1761, to sixty-four proprietors, named on the back of said charter, together with the usual publick rights. By said charter, said tract of land granted is to be divided into seventy equal parts, and the granting expression as-to two of those parts, is as follows: “one share for the first settled minister of the gospel, and one share for the benefit of a school in said town.” It also appears, that the town of Wells, on the 9th of October, 1797, passed a vote, that the north part of said Wells, from Middletown south-west corner, due west, to the line of the state, be annexed to Poultney, for town privileges; and that the town of Poultney, on the 21st of the same October, voted to receive the north part of Wells, from Middletown south-west corner, to the line of the state, to be annexed to this town, with the privileges belonging to them by the charter of said town.” In accordance with these votes of Wells and Poultney, and, without doubt, in consequence of the same, the legislature of this state, on the 31st of October, 1798, passed an act, annexing to Poultney the said north-west part of Wells, describing the same as described in said votes of said towns, and expressly enacting “that the inhabitants of said north-west part of Wells, so annexed to the town of Poultney, should be forever thereafter entitled to the same privileges and immunities, in common with the other inhabitants of said Poultneyand then, in the second section, makes a provision, on which the plaintiffs rely as the foundation of their right to recover. That provision is as follows, to wit: “that the town of Poultney be, and it is hereby declared, forever hereafter to be entitled to such part of the rents, profits, and privileges, of all the publick lands in the town of Wells, as shall be in proportion to the quantity of lands in and by this act annexed to the town of Poultney as aforesaid.” The case further shows, that ever since the passing of said act, the inhabitants residing upon the land thus annexed to Poultney, have been considered as belonging to Poultney, have enjoyed all town privileges there, and paid taxes there, and have never been taxed in Wells, nor claimed or enjoyed town privileges there. [186] ^ aPPears necessary, in the investigation of this subject, to consider in what shape the charter has left the publick rights from which have arisen the funds now in contest, and also the proceedings of the two towns, and of the legislature, upon which the plaintiffs found their claim. By reference to the original charter of the town of Wells, we perceive, that the grant of the land was made to those whose names were entered on the back of the charter, and the pub-lick rights are there designated; but the grant of town privileges is not made to those grantees as such, but to the persons who should inhabit the town. The words of the charter creating the franchise, are as follows, to wit: “and that the same (to wit, land) is hereby incorporated into a township, by the name of Wells, and the inhabitants that do or shall hereafter inhabit said township, are hereby declared to be enfranchised with, and entitled to, all and every privilege and immunity, that other towns within our province by law exercise and enjoy.” The part of the charter which relates to the school right exclusively, makes of it a perpetual appropriation, “for the benefit of schools in said town.” This places it under the care of the inhabitants of the town, without reference to their being owners of the soil, or original grantees. This at least is the case after the land is divided into severalty. The Court are unanimous in the opinion, that the school right, thus appropriated by the charter, belongs to the town of wells; so that the legislature can exercise no power over it, to vary this appropriation, without the consent of the town, and this consent must be by those who are inhabitants of the town, at the time the assent is given. The other right in question, is given by the charter to the first settled minister. This supposes a settlement then future, for the grant was of a territory wholly unsettled, and the Court consider this right as not vested in the minister, while none was settled, but as under the temporary control of the legislature. And so the legislature considered it; and, by their several acts referred to in the case, have appropriated the use and avails to the use of the town, until a minister shall be settled. Going thus far, and no farther in the case, the avails of these two rights for the time being, would belong to the town of Wells; for it does not appear by the case that there has been any minister settled there. But the act of the legislature, annexing part of Wells to Poultney, has undertaken to give to Poultney a portion of the avails of these two rights. Having already decided that this would be unavailing, as it respects the school right, if done without the assent of the town of Wells, it is necessary now to consider whether such assent has been given. And I would observe, that the assent, whatever it is, applies equally to both rights, though it may not affect the decision with regard to the minister right. The said act of the legislature expressly provides, that the inhabitants of that part of Wells so annexed to Poultney, should forever thereafter be entitled to the same privileges and immtt [187] nities, in common with the other inhabitants of said Poultney, This, it will be seen, gave them a right to vote in all town and freemen’s meetings in. the town oí Poultney, to a share of their school funds, and to a support also, in case any of them should become paupers ; and made them liable to be taxed in the town of Poultney, for all town purposes, and discharged them from all such connexion with Wells. The act then proceeds expressly ■to give Poultney a right to such part of the rents, profits and privileges of the publick lands in said Wells as should be in proportion to the quantity of the land so taken from Wells and annexed to Poultney. The vote of the town of Wells would not seem, of itself, to warrant all this. Their vote is, that this territory “be annexed to Poultney, for town privileges.” This vote passed October 9, 1797, and it was probably made known to the town of Poultney at their meeting, holden on the 21st day of the same October, with a view to their concurrence. The town of Poultney then passed a vote, expressing their willingness to receive this part of Wells, but, instead of concurring in the limitations contained in the vote of the town of Wells, they annex their own conditions, which are, that they come “with the privileges belonging to them by the charter of said town of Wells.” At the date of this last vote, the legislature were in session, and the probability is, that the votes of both towns were forwarded to the legislature, in aid of a petition then before the house, which was laid over till the next year, when the act in question passed. Whether this were so or not, the case shows a perfect acquiescence, on the part of both towns, in this act of the legislature, in all respects, at least unless these funds be excepted. The inhabitants living on the part of Wells thus annexed to Poultney, have been considered as belonging to Poultney, ever since the passing of said act; have voted and paid taxes in Poultney, and have never done the same in Wells: and further, that the town of Wells has never claimed taxes of them. But it is urged, that the inhabitants of Wells have never acquiesced in the loss of these funds, but have refused to let them pass to Poultney. The case states no fact of dissent in this respect, till the overtures for a settlement of this controversy, shortly before the commencement of this suit. The inhabitants of Wells must'always have known what conditions were attached to said vote of Poultney, and what were the provisions of said act. They must have known, too, that the inhabitants of this territory were considered as belonging to Poultney, and were enjoying all the privileges enjoyed by the other inhabitants of Poultney; that they were sharing the school monies of Poultney, if any there were, and their not claiming them as inhabitants of Wells, in any respect, for more than twenty years from the passing of the act, is an acquiescence in the act, with all its appendages, especially those appendages without which the town of Poultney had not agreed to receive them. Moreover, all these circumstances furnish^ strong ground of presumption, that the full assent of Wells was [188] had to the act, in all its extent, when it passed, though the record of it is not now tobe found. With such assent on the part of Wells, the Court consider the act of the legislature binding, to transfer to Poultney the right to the funds now claimed. Wm. Page and Chs. K. Williams, for the plaintiff town. Chauncey Langdon, J. Clark, and S. S. Phelps, for the defendant town. But it is urged that the statute of limitations furnishes a bar to this claim, in whole or in part. The Court are relieved from the necessity of deciding this point, by an ellipsis in the case stated. It does not appear by the case, that any of the monies were received more than six years before the commencement of the action. The Court, however, would not dispose of so important a case upon such a point, without an amendment of the case, on such terms as would makegood the opposite party. But, supposing the case as the parties have treated it, the Court consider the action could not be supported, without a previous demand of the money. Therefore, until such demand, that statute did not begin to run. One question further remains: that is, what portion of these funds belong to Poutlney ? The Court consider that the plaintiffs should recover such portion as these inhabitants, thus annexed to Poultney, would have virtually enjoyed, if not thus annexed. And it is now agreed, though not stated in the case, that, when a former part of Wells was annexed to Middletown, all the publick lands remained to Wells, which left Wells 18,960 acres and 144 rods of territory, with all the publick rights at the time of the annexing to Poultney ; and the quantity annexed to Poultney, was 5542 acres three fourths, and 39 rods. The sums received by Wells on the school right, amount to $1269,22, and on the minister right, $530, making $1,799,22. The plaintiffs are entitled to recover such a portion of said last sum, as said 5542 acres, three fourths 39 rods bear to said 18,960 acres and • 144 rods, with interest on the same from the time the demand was made. The counsel can agree upon a cast, or the clerk will make it according to the above proportion.