Van Sicklen v. Town of Burlington

The opinion of the court was delivered by Isham, J. Without recapitulating the facts stated in the bill and answer, it is sufficient to state generally the facts which are considered important, and upon which the questions in this case arise. It it admitted, that on the 8th day of March, 1853, the — 75 — inhabitants of Burlington, at a legal meeting warned for that pur-, pose, appropiated by vote, the sum of six hundred dollars for the use of the lire engine, and hook and ladder companies, which were organized in the town. The money thus appropriated was to be disbursed to those companies, as the select men, in their discretion, might deem necessary. It appears that previous to, and at the time of the passage of that vote, there were in the town three companies which were incorporated, and duly organized for the purpose of protecting the property of the place from loss and injury by fire 5 that the companies were possessed of fire engines, hose and other necessary apparatus for that purpose, but that the same were out of repair, and insufficient to be of any service or practical use. It also appears, that the town of Burlington, in their corporate capacity, are possessed of property of considerable value which, with that of its inhabitants, is exposed to destruction and injury by fire, and from the vote of the town we are led to believe, that the inhabitants are desirous of adopting those usual and ordinary mgans, which are employed to guard against such injuries. The petitioners object to the application of that money for that purpose, and they insist that the town have no authority to make such an appropriation, or pass such a vote. The only question in the case arises upon the legality of that vote of the town, and their right to make that appropriation from their corporate funds. The decision of this question depends exclusively upon the construction which is to be given to the 79th section of the Comp. Stat. 122, which provides, “ that any town may grant and vote such sums of money as they “ shall judge necessary for the maintenance and support of the poor; “ for laying out and repairing highways; for building and repairing “ bridges; for the prosecution and defence of their common rights “ and interests, and for all other neeessary and incidental charges “ within said town.” It has been insisted, that, by the general words of this act, no power is given to the town to lay taxes, or appropriate its funds except for the specific purposes mentioned in the act; that its general language is to be limited to those purposes, and that being a corporation, their powers are to be strictly construed. There is no doubt, that towns or municipal corporations, as well as private corporations are limited to the exercise of such powers — 76 — as are expressly given them; that is, the inhabitants of a town cannot by a vote impose a tax, or appropriate their funds, for objects entirely foreign to their political or municipal duties — such as to build a county jail, 10 Yt. 506; to repel the public enemies of the country, 13 Mass. 272; or to build a county road, 11 Pick. 396. But when the object is within their duty and jurisdiction as a municipal corporation, they may exercise such powers as will enable them fully to discharge the duties devolving upon them. Our statute on this subject is nearly a transcript of that of Massachusetts. In that state it is provided by statute, “that towns may vote money “ as they shall judge necessary for the support of the ministry, “ schools, the poor, and other necessary charges arising within the “ the same town.” On the question whether this latter and general clause is limited to the objects previously specified, Oh. J. Shaw, in the case of Willard v. Newburyport, 13 Pick. 230, observed, “ that it seems very clear that this statement was not intended to “ be an enumeration of objects and purposes for which towns may “ raise money, but the expression of a few prominent objects by “way of instance, and a general reference to others, under the term, “ other necessary charges.” On the same construction, the general words in our act, that money may be voted “ for the prosecution “ and defence of their common rights and interests, and for all other “necessary and incidental charges,” must not be limited to the objects specially mentioned in that act, but will be extended to other matters that fall within their rights and duties. It has always been found difficult to define the limits within which towns may act, or give a definite rule, by which we may ascertain when them votes will be deemed illegal. Ch. J. Shaw observed, “ that perhaps no better approximation to an exact description can “be made, than to say that it embraces that large class of miscellaneous subjects affecting the accommodation and convenience of the “inhabitants, which have been placed under the municipal jurisdic- “ tion of towns, by statute or by usage.” This construction of the act, we think, is not unreasonable; and is required, as being necessary for the existence and government of towns, and which should be given to the provisions of our statute. The application of this construction of the act, is all that remains to make a disposition of the case. That this town is the — 77 — owner of property of the value of several thousand dollars which is exposed to injury and destruction by fire, is distinctly stated in the case. If they may own such property in their corporate capacity, it is equally their duty, in that capacity, to protect it from destruction, and from every injury to which it is exposed. This duty grows out of, and is necessarily connected with that right. Of the mode and manner in which that duty is to be performed, they must necessarily be the judges. If fire is considered by them to be the dangerous element against which they are to exercise their precaution, they may purchase engines, hose and ladders for that purpose, and procure the assistance of men to use them, so as to render the property so purchased effective, and useful in times of necessity and danger. To this extent, we apprehend, no reasonable doubt can exist in the case. But an objection is urged against this particular appropriation, and the particular manner in which it was made. It is said, that no property has been purchased by the town, and that this vote is a gift of its corporate funds to these different private corporations, and that over which, and over them, the town can exercise no control. In relation to the corporate character of these companies, it is proper to observe, that they were incorporated for no purposes of profit, or to enable them to hold property for purposes aside from the particular object of their association. Their sole object was to secure order,, efficiency and government when contending with that element, and without which their engines, hose, ladders or other apparatus will be of little use or benefit to the town or its inhabitants. Whether the town by that application of its funds will become to any extent the owners of that property, after the repairs are made, we are not called upon to decide. It is sufficient that the town are satisfied, that by this appropriation of its funds, that object is secured to them, and that the property when repaired, will be held and used for the purposes for which the appropriation was made. The fact also that the money is to be disbursed by the selectmen in their discretion, enables them to secure the exclusive use of that property for the benefit of the town, and its inhabitants. The question as to the validity of such a vote, and for such objects, has never been decided in this state ; yet such votes and appropriations by towns , have been sustained in Massachusetts, — 78 — under a statute, which we have seen is similar in its provisions to our own. Such was the case o£ Allen v. Taunton„ 19 Pick. 485, in which it was held that, a town are authorized to appropriate money for the repair of fire engines used for the purpose of extinguishing fires therein, whether they belong to the town or were purchased by private subscriptions. The court remarked, “ that “ if the town has authority to purchase engines, they may also unite “ with individuals, and in such proportions as to interest, as may be “ equitable and just between the parties. Such an arrangement “ may often be found convenient, when from the location of the “inhabitants, any considerable number of them may not fully par- “ ticipate in all the benefits.” In the case of Torrey v. Milllury, 21 Pick. 64., the town voted to raise and appropriate the sum of four hundred dollars to purchase a fire engine, provided an equal amount was raised by individual subscriptions for the same purpose. The assessment and appropriation was held valid and binding on the inhabitants of the town. If is to be observed, that in the cases cited, it did not appear that the towns had any corporate property to be benefitted by that appropriation; but its legality was sustained upon a general duty resting upon municipal corporations of that character, to provide whatever shall be deemed “an object of common convenience and necessity.” It is upon that general duty, the case of Willard v. Newburyport, 12 Pick. 227, was decided in which it was held, that an appropriation for the repair of town clocks was valid, though the clocks were originally purchased not by the town, but by different individuals. So too, for the erection of a market-house for the convenience of the inhabitants, 23 Pick. 71, and for the same purpose, to construct aqueducts and reservoirs of water, as was decided in the case of Hardy v. Waltham, 3 Met. 163. In that case, the town was enjoined from the payment of the money, in pursuance of a vote of the town, but the appropriation was deemed legal, and the injunction was dissolved, and the bill dismissed. It is necessary in this case, however, only to say, that when a town, in them corporate capacity, is the owner of property exposed to injury and loss by fire, they may make appropriations from their corporate funds for its preservation, and protection from fire ; and that the inhabitants of the town are the proper judges, whether — 79 — the engines, and other property for that purpose, shall be purchased, or the money be appropriated in the manner in which it has been under this vote of the town. In either event, the appropriation is binding on the town, and its inhabitants. The decree of the chancellor is reversed, and the bill dismissed with costs.