Hunneman & Co. v. Fire District No. 1

Kellogg, J. This is an action on book account, and it comes to this court upon exceptions taken by the defendant to the judgment of the county court in favor of the plaintiff on the auditor’s report. The first question insisted upon by the defendant is a denial of its legal existence as a corporation. No question in respect to the defendant’s legal existence was raised by plea, and we think that, after a judgment to account, it is too late to make any objection to further proceedings in the suit on this ground. The auditor is not the proper tribunal to try the question whether there is such a corporation as the defendant in existence. His duties are to “ hear, examine, and adjust the accounts between the parties and, if the defendant would deny its alleged .corporate existence, the question [44] should be raised by plea, before judgment to account is rendered. By submitting to a judgment to account, a defence to the suit on this ground should be considered as waived. If no such corporation is in existence, the defendant cannot be prejudiced by the taking of the account, nor by any judgment rendered thereon. In that case, the judgment would be a mere nullity, and ineffectual for any purpose ; and the plaintiffs would take it at their own risk, quantum váleat. In this view of the matter, we have not regarded the alleged irregularities in the organization of the fire district as being entitled to consideration. In the absence of any plea putting in issue the proper existence of the fire district as a corporation, we think that sufficient appears in the auditor’s report to show that it is a corporation de facto, and to warrant proceedings against it as such. We think that the auditor properly rejected the proof offered in respect to tbe adjournment of the meeting held on the 5th of January, 1857, because the effect of the testimony would be to add to and alter the record of the proceedings of that meeting, and the fact sought to be established by the testimony would/if proved, have no bearing on any question properly before him on the hearing. The inhabitants of any fire district are authorized, at any legal meeting, to vote a tax on the graud list of the persons and property within the district for the purpose of protecting the property within the district from damage or destruction by fire. Acts of 1854, No. 7, § 6 ; (G-. S., p. 122, § 171.) This authority to raise money by taxation is plenary and unrestricted. The purchase of engines, hose, and other fire apparatus is one of the chief objects sought to be attained in the organization of fire districts; and the statute has left the powers of the district wholly unlimited in this respect, but it has provided that the prudential committee of the district shall not have power in any case to bind the district for the payment of any greater sum of money than shall have been already voted or collected. (Acts of .1860, No. 26, § 2.) This is a limitation merely on the discretionary power or authority of the prudential committee, but it is no .limitation on the powers of the district as a corporation. The section of the act of 1860 in relation to the duties of the prudential committee provides, among other things, that they shall have power to make all needful .contracts, and expend the moneys of the [45] ■district in such manner, for the preservation of property in such district from damage or destruction by fire, as they shall deem necessary, and to draw orders on the treasury therefor. The purchase of a fire engine and the instruments or apparatus used with it was a transaction clearly within the scope of the corporate power conferred by the' statute on fire districts, and the power to raise taxes for the purpose of protecting property in such districts from damage or destruction by fire implies the power' to make such expenditures as are necessary and proper to effect that purpose, except in cases in which the exercise of this power is restricted or restrained by statute. The ■only restriction upon the mode in which a fire district may make contracts is contained in the Acts of 1857, No. 36, § 1, (G-. S. p. 123, § 22,) and this, in terms, is applicable only to purchases of real and personal estate “ necessary for the protection and preservation of the engine, hose, and other fire apparatus of the district,” and “ the apparatus for extinguishing fires,” mentioned in that section, is referred to only for the purpose of limiting and defining the amount of other property which fire districts may take and hold. As to a person with whom it contracted a pecuniary liability arising on contract, a fire district, being not otherwise limited in respect to its power to enter into the contract, or to the persons through whom that power should be exerted, would stand on the same footing with a private corporation or an individual; and it might accordingly make a contract by an agent chosen by a vote of the district for that purpose. Angelí & Ames on Corp., 22, 266. We think that the third article in the warning for the meeting of the district which was held on the first Monday of January, 1862, was sufficiently definite and certain to support the votes of the district at that meeting in respect to procuring apparatus for extinguishing fires, and the appointment of an agent to purchase the same. Dix et al, v. School District No. 2 in Wilmington, 22 Vt. 309 ; Moore v. Beattie, 33 Vt. 219, The appointment of a committee of three persons to “be advisory with the agent” did not limit the power expressly conferred upon the agent, and we think that the terms of the vote under which ■ that committee was appointed very strongly imply that the duties of this committee were intended to be, in respect to the agent, advisory only. The agent was appointed by the vote of [46] the district “ to purchase whatever of fire apparatus the district may vote to buy ; and the district thereupon voted, (1.) “ that $500. be appropriated to defray the expenses and preparation of suitable fire apparatus for the use of the district,” and (2.) “ that the agent be instructed to expend a sum not to exceed $1000., which shall include fire apparatus and reservoirs, and all things necessary for the protection of the district from fire.” By these votes, the district conferred upon the agent an authority to pledge its credit which was not conferred by the statute on its prudential committee ; and this special authority could'as properly be conferred on an agent appointed for that purpose as upon the prudential committee. If the district had 'voted to confer this authority upon its prudential committee, that ■ committee would, quoad hoc, have been merely special agents of the district. The chief question in the case is whether the agent exceeded the authority which the district conferred upon him; and this question is dependent wholly on the construction and interpretation of the votes of the district. It is not claimed that the contracts of the agent exceeded the limit specified in the last vote, and that vote clearly authorized an expenditure of a sum not exceeding one thousand dollars in the whole “ for fire apparatus and reservoirs, and all things necessary for the protection of the district from fire.” We think that this vote enlarged the authority conferred by the first vote, and that the agent, in ordering of the plaintiffs the fire engine ■ and other articles charged in their account, acted within the power conferred upon him, and that his proceedings were binding on the district. The plaintiffs do not appear to have been informed that the prudential committee or any other persons in the district disapproved of the acts of the agent, and were justified in dealing with him as the agent of the district so long as he acted within the authority conferred upon him. Judgment of the county court for the plaintiffs aflirmed.