Henry Atkins & Co. v. Town of Randolph

Barrett, J. In this case, the plaintiffs sold liquors to Samuel B. Mann, as the “ agent” for the town of Randolph, appointed by the county commissioner under the provisions of the third section of the act of 1852, “to prevent traffic in intoxicating liquors for the purpose of drinking.” The plaintiffs’ account shows that the liquors were sold by them at different times within the year 1853, except three barrels of Medford rum, sold under date of January 18, 1854. In the view — 231 — we take of the case, however, the fact that this last item of charge accrued after the amendment of the act, in respect to the purchase of liquors by such agents, went into operation, is of no importance. Mann gave no bond under the provision of the law in that behalf; nor did he pay any of the money realized on the sale of the liquors into the treasury of the town ; nor did the selectmen of the town prescribe any compensation for the agent; nor did the town receive any benefit from the sale of the liquors; nor had the town any knowledge that the agent was purchasing liquors on its credit. For the purpose of discussing and deciding the main question that is made in this case, the above is a sufficient statement of the facts; for, if in virtue of the agency created by the act of 1852, Mann was authorized to purchase the liquors and bind the town to pay for them, the plaintiffs are entitled to recover. Had Mann Valid authority by virtue of that statute so to do ? The decision of this question can not rest, on either side, upon the common doctrines applicable to the relation of principal and agent, for that relation did not exist. No idea can be formed of such a relation only as arising from the authorization, express or implied, given by the principal to the agent-. This case negates such an authorization. Mann was designated for, and appointed to the office, without any participation or control on the part of the town. The town had no control over his acts, and it has not, in any way, assented to or ratified them. Every feature of agency, then, in its common law sense and acceptation is excluded. The term “ agent” is used in the statute, it is true, but it is an appropriation of the term, without regard to the substance, and an arbitrary application of it to an officer, created by virtue of the statute, whose relations, functions and duties, as prescribed by the statute, differ in all material respects from those of an agent of the town, in any proper sense of an agency. The decision of the case, then, stands upon the question, whether the provisions of the statute, clothing the agent with his official powers, are valid. As the case is before us, it presents this simple proposition in behalf of the plaintiffs, viz: that the legislature have the consti — 232 — tutional authority to clothe Samuel B. Mann with power to contract, without the authorization, consent or knowledge of the town, for, and in the name, and on the credit of the town, and thereby bind it by contracts thus made in the behalf provided in the third section of the statute in question. No question being made about the regularity of Mann’s appointment as such agent, nor about his having made the purchases under color of the office which he thus held, the rights of the plaintiffs in this case rest upon that proposition ; which proposition is denied by the defendants. Hence the duty is cast upon the judicial department of the government of determining the matter in issue. The legislature have performed their functions in enacting the law. The court, as a co-ordinate branch of the government, must perform their function by passing upon the questioned validity of this provision of the law. It may be well, in view of one ground assumed and argued by the counsel for the defendant, to determine whether the provision under consideration, requires or warrants any implication or intendment beyond the natural import of its terms. It is claimed for the defendants, that the court should construe the section as meaning the same as if the words ‘‘ and with the consent,” had been inserted after the words “ at the expense,” and so stand that the agent might “ purchase at the expense and with the consent of the town or city,” etc.; and that, inasmuch as no assent of the town is shown, the plaintiffs are not entitled to recover. We recognize the settled doctrine of construction applicable to statutes in this respect, and do not question the propriety of its application in the cases that were cited in the argument. But that doctrine is only applicable when such an addition, by implication, is necessary, in order to effectuate the supposed intention of the legislature. In the case before us, we are satisfied that the legislature have fully expressed just what, and all, they intended in this respect. The design was to create and put in operation the liquor agency, irrespective of the assent of the town. It was to make the operation of the law upon this subject, independent of the views of the majority in any town that might be adverse to the law, or to this particular provision of the law, and to render it uniform throughout the county: depending in — 233 — some measure, for the character of such operation, upon the character and official conduct of the commissioner whom the county should elect. Such being our views of the intent of the legislature, and regarding the language of this provision as full and explicit in expressing that intent, it would be disingenuous, and savor of timorous delicacy, to avoid the direct question of the validity of the law, by assigning to the language used a meaning that the legislature did not intend. This provision of the law is claimed to be valid, as being within the scope of legitimate legislation under the constitution. It is asserted that the law is for the regulation of the internal police of the State, and that under that clause of the bill of rights which says, “ that the people of this State, by their legal representatives, have the sole, inherent and exclusive right of governing and regulating the internal police of the same,” the- legislature had full warrant for enacting the law, just as it originally stood, in all its provisions. It is worthy of inquiry, however, whether that article of the bill of rights was designed primarily, or in any sense, to confer authority, or only to deny the existence of authority in any other power to govern and regulate the internal police of the State. The entire theory of government in this country assumes ^that the people of a State have the right to govern and regulate in this respect. That article seems to be predicated upon that assumption, and inserted by way of express denial of that right to any body but the people of the State. It was incorporated into the first constitution of this State, framed by the convention holden at Windsor, on the 2d of July, 1777. The colonial history of this country, and the relation then existing between this country and the government of Great Britian, explain and show the purpose why the article was thus incorporated. We regard it as having been designed, not to confer authority upon the legislature, but to deny the existence of the right in any body but the people of the State. That right is to be exercised by them through the legislature, whose powers and duties are elsewhere in the constitution amply provided for and defined. It is fully conceded that the statute of 1852 is a matter of — 234 — police regulation, and so, as a subject, was within the province of legislative functions. But it Toy no means follows, that the legislature, in acting upon the subject, may not have transcended their constitutional authority. So far as prohibiting the traffic in intoxicating liquors, and prescribing penalties and modes of prosecucution is concerned, it has been several times properly decided that the law, as a police regulation, is constitutional and valid. But this case arises upon another feature of the law. Section 3 provides a mode by which liquors may be kept, furnished and sold for certain lawful purposes, with the obvious design of thereby removing both the temptation, and any supposed necessity of vioating the prohibitory part of the law. The legislature have undoubted authority to make provision in this respect, but that authority must be exercised in a manner consistent with the constitution. We do not feel called upon in this case, to discuss or decide the somewhat vexed question, whether an act of the legislature is to be held void, irrespective of constitutional restriction, on the ground of its being contrary to natural right, justice and equity. Much might be, as much has been said, with pertinency and force, on both sides of the question. For present purposes, it is sufficient to rest our decision on the ground that constitutional restriction is the sole restraint upon legislative omnipotence. Since some early judicial notions of Chief Justice Gibson,, no judge or court has intimated that the property of one person could be taken without his consent and transferred to another, either with or without compensation, merely by force of legislative enactment. In whatever form the question may arise, the uniform judgment of the courts of this country has settled that such would be unconstitutional and void legislation. This, then, would seem to be conclusive against the right, by virtue of the act of the legislature, through the machinery of the official agency of Samuel B. Mann, to take the property of the town of Randolph, or of the inhabitants of that town, and put it into his pockets without their consent. Practically, that is sought to be done by this suit. For he has received and used without account, the avails of the liquors for which it is now sought to charge the town. It is no answer to this to say, that Mann is liable to be sued by the town — 235 — for the money thus received and used by him. For he is made their factor and trustee without their privity or consent, and without any indemnity, or means of enforcing any. And the case shows him to have been bankrupt during his official life. The town is left to rest entirely upon his pleasure, and his personal responsibility. Again, it is in effect declared in the bill of rights, as a part of the constitution, that private property may be taken for public uses only when necessity requires it, and not then, unless provision be made that the owner may receive an equivalent in money. Now, if it be conceded that it is a matter of public use and necessity, that the town of Randolph, or its inhabitants, should be compelled to pay their money for the liquors purchased and to be sold by the commissioner’s appointee, there is no provision in this law for making re-imbursement by the equivalent contemplated by the constitution. It is to be borne" in mind, that this mode of compelling a town to pay for the liquors thus purchased, does not stand upon the ground and right of ordinary taxation. For all public burdens, other than corporate expenses of towns, villages, or school districts, the law is uniform in its operation, acting upon the inhabitants of all the towns throughout the State, upon a uniform basis, and by a uniform rule, and thus making the burden equal throughout the State or county. For all municipal purposes, whether in towns, cities, villages or school districts, the matter of appropriation and taxation is committed to the action and control of the inhabitants of the respective corporations, acting in their organized capacity, under the general laws of the State. Under the law in question, so far as the public benefit is concerned, having reference to the entire State, the liability and burden imposed upon the respective towns rest on no common principle, and are subject to no rule of equality. The liability and burden of each town are left to depend on the acts of a person over whom the town has no control, either to direct or restrain. So far as the public benefit, having reference to the town itself, is concerned, the town is deprived of any corporate action as to the purpose, amount or mannei of the expenditure, and may be compelled to respond to — 236 — any amount for which the agent may have pledged its credit. A view of the case remains to be considered, which seems to us, upon the clearest principles, to be decisive against the validity of the law, as imposing a liability on the town to pay for the liquors bought by Mann. The plaintiffs, by their suit, assert their right as arising ex contractu. It is claimed that through the agency of Mann, the town is party to a contract of purchase. Now it is a fundamental element in aE contracts, indeed, in any possible idea of a contract, that the party to be bound must have assented to the contract, either expressly or by implication. In this case there was no assent on the part of the town ; so that on common principles there was no contract, either express or implied. If the town is to be bound as by contract, .it must be by the compelling force of the law in question. Can the town be thus compeEed to become a party to, and to be bound by, such a contract? State legislatures are restrained by the constitution of the United States, from enacting laws impairing the obligation of contracts. The legitimate force and appEcation of the principle of this provision would prohibit the enactment of any law to compel a person to make, or become a party to a contract. But passing this; it is prominent for notice, that the judges and courts that have gone farthest in sustaining laws of State legislatures against the restrictive provisions of constitutions, repudiate entirely the idea that a person, whether natural or artificial, can be compeEed by legislative enactment, to become a party to, or to be subjected to liability upon, a contract, without his consent. In Sharpless v. The Mayor of Philadelphia, 21 Penn. (in which case the doctrine of legislative omnipotence was, by a majority of the court, carried to the last verge of endurance) p. 165, Black, Ch. J., in delivering his opinion, as one of the majority making the decision, says, “ I do not say, however, that a contract between two individuals, or between two corporations, can be made by the legislature. That would not be legislation. Besides, it would be impossible in the nature of things ; for the essence of a contract is the agreement of the parties.” And in — 237 — the following language, he marks the broad distinction between that case and this, even if his views of that case be regarded as sound. He says, “but here is no contract made by the legislature, but only an authority given to the respective corporations to make one between themselves, if they see proper.” Bronson, J., in Taylor v. Porter et al., 4 Hill p. 143, says, “the powers of making bargains for individuals has not been delegated to any branch of the government.” In Hampshire v. Franklin, 16 Mass. p. 83, Parker, Ch. J. says, “it certainly must be admitted that by the principles of every free government, and of our constitution in particular, it is not in the power of the legislature to create a debt from one person to another, or from one corporationto another, without the consent, express or implied, of the party to be charged. In Bowdoinham v. Richmond, 2 Greenl. 42, and in Brunswick v. Litchfield, 2 Greenl. 28, Mellen, Ch. J. holds the same doctrine. This doctrine must receive, as it ever has received, the same application to a municipal corporation as to a private corporation, or to an individual, when it is sought to visit a pecuniary liability ex contractu, upon a town, by the ordinary means of a suit at law. It is true, as was urged in the argument by the learned counsel for the plaintiffs, that in some respects, the legislature have a power in respect to municipal corporations, that they have not in respect to private corporations or individuals. They may alter or abolish municipal corporations at pleasure, but, yet, not so as to defeat the pecuniary rights of individuals, as against such corporations, or as depending on their existence. The legislature have the same power in respect to private corporations, when that power is reserved in the law creating them. So far as a municipal corporation is endowed by law with the power of contracting, and as such, is made capable of acquiring, holding and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, thus being invested with legal rights as to property and contracts, and made subject to legal liabilities in respect thereto, to be ascertained and enforced by suit in the ordinary judicial forums, upon the same principles, and by the same means as in case of a private corporation, such municipal — 238 — corporation must stand on the same ground of exemption from legislative control and interference as a private corporation. As to third persons who seek to enforce pecuniary liabilities against towns, arising upon contract, such towns are merely private corporations or individuals, and in this respect, they are not affected by the purely municipal, public and political features that appertain to their corporate existence, in virtue of, and in reference to which alone, they are subject to the absolute control of legislation. The respect, in which the legislature have unrestricted control over such corporations, is well marked in the case of The People v. Morris, 13 Wend. 325, in which Nelson, J. says, public corporations are created “ by investing the people of a place with the local government thereof;” * * * “ instituted for the purpose of exercising mere municipal jurisdiction, a power public and political, and which, by the constitution, belongs to the legislative department;” * * * “political institutions, erected to be employed in the internal government of the State ;” * * * “ the inhabitants, upon whom the powers and privileges are conferred, are mere trustees, who hold and exercise such powers for the public good;” * * * “the only interest involved is the public interest, and no other is concerned in their creation, continuance, alteration or renewal.” This view seems to be fully recognized and embodied in the learned and elaborate opinion drawn up by Isham, J., in the case of Montpelier v. E. Montpelier, 29 Vt. 12. That case, moreover, as well as that of Bowdoinhann v. Richmond, demonstrates that some things are beyond the scope of legitimate legislation., as affecting municipal corporations, a doctrine entirely at variance with the idea of the illimitable supremacy of the law making power over such corporations. The language of Hutchinson, J., in Poultney v. Wells, 1 Aik. 180, embodying the principle upon which the decision of that case was rested, is comprehensive, and to the point. He says, “ 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 its 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.” — 239 — See also, Moodalay v. Morton, 1 Br. Ch. 469; Bailey et al. v. Mayor et al. of the City of New York, 3 Hill. 531; Fourth School District in Rumford v. Wood, 13 Mass. 192; 2 Kent’s Com. 275; Ang. & A. on Corp. § § 23, 24, 33; Louisville v. The University, 15 B. Munroe 642. These cases, and many more that might be cited, fully indicate the double character which such corporations bear, and the rights which they have, and the relations which they sustain by virtue of each character respectively. They are expressions and illustrations of the reason why, from the fact of towns existing in organized corporations, primarily for certain public political purposes, as auxiliary to the practical government of the State, and as such, are under the absolute control of the legislature, it does not follow that they, as organized corporations, or the inhabitants composing them, can be subjected, arbitrarily, to pecuniary burdens and liabilities, to be responded to either by the property of the town or of its inhabitants. In this case, the practical thing sought to be done under the the law in question, is, that the town, nominally as a corporation, but in fact, the inhabitants of the town subject to taxation, may be compelled to appropriate so much of their property, proportionately, as shall be sufficient to pay for the liquors purchased by Mann, in his character of agent, whatever maybe that amount. If through the artificial contrivance of municipal corporations, of which the inhabitants of the State must be members, nolentes volentes, such consequences can be wrought out, most persons would invoke the exercise of the annihilating power of the government over such corporations, rather than of the power of the police regulation, in virtue of which alone, this provision of the law is sought to be sustained. We have less occasion for delicacy, arising from a feeling of deference towards a co-ordinate department of the government, in coming to the result we do in this case, for the reason that the legislature have anticipated us, by the amendment of 1853, in virtually declaring that the provision in the original act, for pledging the credit of the town, and binding it by the contract of the agent, without its consent and without indemnity, was unwarranted legislation, — 240 — The judgment is reversed, and the case remanded to the county court. The case of Dexter & Torrey v. The Town of Braintree, is disposed of by this decision. It being book account, the judgment is reversed, and judgment rendered by this court for the defendant.