Terrett v. Town of Sharon

Butler, J. We have deemed it our duty, upon principles of public justice and equity, to sustain the claims of the soldiers who actually served in the war, for bounties voted by the towns, wherever it could be done consistently with a due adherence to the prirciples of law, and we have given this case a deliberate consideration, with a view to sustain the claims made against the town if it could be done. But the case differs in one material feature — the rescission of the vote — from any of the others of its class which have been before us. We have holden the towns liable where their action preceded and was confirmed by the act of July 6th,-1864. Bartholomew v. Town of Harwinton, 33 Conn., 408. We have also holden the towns liable where their action was ratified under the act of November 13th, 1863, and the person to whom the bounty was voted had acted upon the faith of it. Waldo v. Town of Portland, 33 Conn., 363. But we have not holdén and cannot hold the towns absolutely liable by force of the act of June 29th, 1865, where the votes contemplated gratuities for past services. It was not the intention of the legislature by that act to make the votes of the towns granting bounties obligatoiy at all events. They intended to validate votes passed and obligations and liabili [108] ties assumed, but only to the extent which they would have been valid “ if previously authorized by law.” In this case the town voted bounties to those who then were or had been in actual service, or should be drafted or furnish a substitute, and it is conceded that none of the claimants enlisted or were drafted or furnished a substitute after it was passed, or otherwise acted upon the faith of the vote. Before any bounties were paid or orders given pursuant to the vote, the town rescinded it, and the petitioners brought their petition to enjoin the selectmen and agents of the town from carrying the rescinded vote into effect. The power of the town to rescind cannot be doubted, and the recission, it is substantially conceded ‘in the argument, must deprive the selectmen and agents'of the town of all right or power to pay the claims, unless the vote gave the claimants a vested interest per se, or the act of 1865 referred to, made the vote absolutely obligatory. Did then the vote of the town per se vest a right in the claimants ? We held in Usher v. Colchester, 33 Conn., 567, that it did not; because, if the vote imported a promise, as was claimed in that case, it was without consideration ; and if it imported a gift, it was unexecuted and revocable. We held also in that case that the act of 1865 was not intended to make, and could not have the effect to make, the vote absolutely obligatory upon the town ; and we remain of opinion that the act is not susceptible of any such construction as the claimants urge. The case before us then is simply one where a town has passed a vote giving gratuities, which by force of a subsequent act became a legal vote, and which the officers and agents of the town might legally have carried into effect while the vote remained in force, but where, the vote having been rescinded by a subsequent one, the officers and agents of the town were deprived of all power or authority to execute it, and yet threatened to do it in violation of their duty and trust. It is very clear that such a case is a proper one for the interposition of the superior court by injunction upon the application of a tax payer of the town, and that court must be advised [109] that the petitioner’s bill is sufficient, and the prayer of it should be granted. In this opinion the other judges concurred.