Town of Rocky Hill v. Hollister

Torrance, J. The principal facts in this case are the following:—A public ferry has existed between the towns of Rocky Hill and Glastonbury since the year 1724. Prior to 1864 it was operated by private parties, who claimed to own the ferry franchise subject to legislative control. About the year 1860 one Killam operated it, and early in 1864 all of his rights in the franchise and ferry property came into the possession of one Boynton. The latter operated it until July or August of that year, when he took off his ferry-boat and kept it away for about one month. At this time the towns aforesaid obtained an injunction against Boynton to restrain him from removing his ferry-boat, but the suit was soon after withdrawn. During said month the towns procured a fiat boat and operated the ferry at their own expense. At the end of the month Boynton returned his boat and continued to maintain the ferry till the spring of 1865, when lie permanently removed his boat and has never since kept or operated the ferry. Thereupon the two towns operated the ferry till April, 1866. The fares were insufficient to meet the operating expenses. On the 10th of April, 1866, the towns, through their selectmen empowered thereto by a vote of the towns, made a written contract with Killam to construct a steam ferry-boat, and maintain the ferry at his expense for the term of ten years, he to collect and retain the tolls, to save the towns harmless from loss, and to be paid by each of the towns in addition five hundred dollars. Under that contract Killam operated the ferry till April 10th, — 442 — 1876. In November, 1875, a like agreement, except that the towns were to pay nothing, was entered into between the towns and Killam and the defendant, for a term of ten years. Under that contract the ferry was operated after April 10th, 1876. At an adjourned town meeting of Rocky Hill in October, 1885, it was voted that its selectmen take measures to sell the right and privilege of running the ferry to the highest bidder. In the same month Glastonbury voted to leave the matter of leasing the ferry to its selectmen, with power to act. No notice that any such action would be taken was inserted in the call for either of these meetings. In February, 1886, the selectmen of both towns, acting together, gave public notice of the time and place at which they would receive bids for the right and privilege of operating the ferry for ten j^eais. The defendant bid four hundred dollars, and this being the highest received, he was awarded the contract. In February, 1886, Hollister bought all of Killam’s interest in the ferry and ferry property, and operated the ferry alone till April 10th, 1886. On the 27tli of March, 1886, the written agreement sued upon, and set out in full in the complaint, was entered into between the two towns on the one part, by their selectmen, and the defendant on the other. It purports to be an indenture and agreement of lease, is signed and sealed by the defendant, and is signed by the towns by their selectmen, but is neither witnessed nor acknowledged. By it the towns agree to lease the ferry to the defendant, to be operated by him for the accommodation of the public “in as full and ample a manner as said parties of the first part could do if they conducted and managed said ferry,” for ten years from April 10th, 1886. The defendant, among other things, agrees, “ in consideration of having the right to use, keep and maintain said ferry, and of receiving the income and emoluments thereof,” to'pay to each of the towns the sum of twenty dollars per year for the lease of the ferry, for said term, “ to be payable to the respective treasurers of said towns for the time being, on the first day of January in each and every year-oi said term.” — 443 — Ijnder this agreement the defendant began to operate the ferros from and after April 10th, 1886, and continued to operate \he same, and to take all the tolls to his own use, up to the time of this suit, but refused to pay the sums agreed to be paid yearly to the plaintiff; and this suit is brought to recover two of the yearly payments. At a special town meeting of Rocky Hill, duly warned for that purpose, held in December, 1887, the town agent was by vote directed to bring a suit against the defendant in the name of the town, “ to collect the rent due this town under the lease executed by the selectmen of this town and the selectmen of Glastonbury, of the Rocky Hill ferry, to Martin T. Hollister, dated the 27th day of March, A. D. 1886, and to enforce the provisions of said lease, or to take steps to terminate the lease according to the conditions of said lease.” On the 31st of January, 1888, Boynton by deed quit-claimed all his right, title and interest in the ferry to the defendant. The court below finds that “Boynton’s interest in said ferry has never been forfeited and become vested in the .towns of Rocky Hill and Glastonbury in the manner provided by statute.” Upon these facts the court below rendered judgment for the defendant. In the view we take of the case we think this judgment is erroneous. If it be admitted for the sake of the argument, as the defendant claims, that, at the time when the contract sued upon went into effect, Boynton had not abandoned or lost his rights in the ferry, and the towns had not, -as against him, acquired any right, title or interest therein; and further, that towns have only such rights and powers as are conferred upon them by law, expressly or by necessary implication, we still think the judgment below was erroneous. When Boynton ceased to maintain the ferry in 1865, that duty was by law cast upon the towns, and remained upon them so long as Boynton refused to perform it. That duty carried with it the right to take and appropriate the lawful fares. As against every one except Boynton, even on the defendant’s claim, the towns in April, 1886, had the sole — 444 — and exclusive right to operate the ferry áhd take the fares therefor. The duty to maintain the ferry being cast/upon the towns by law, carried with it, in the absence of ally law or rule of public policy to the contrary, the right to.perform the duty in such manner as they thought best, so long as the duty was performed, to the satisfaction of those having occasion to use the ferry. In the' absence of such law or rule the towns could operate the ferry through the' agency of their own officers and servants, or through the agency of third parties responsible to the towns aTone for the performance of that duty. The law casts upon towns various duties, such as the making and maintenance of highways and bridges, and the care of paupers, and in the absence of laws providing how these duties shall be performed, or of known rules of law or public policy forbidding it, towns have performed these duties in ways analogous to that adopted by the towns in this case for the maintenance of this ferry. We know of no law that directs the way and manner in which these towns shall operate this ferry or that forbids them to manage it in the way it was managed by them from 1865 to 1886, nor are we aware of any sound rule of public policy that is or can be violated by permitting them to perform it in this way. Confessedly the maintenance of the ferry is a burden imposed upon these towns, not alone for the benefit of the inhabitants of the towns, but of the general public as well. As some compensation for this the legislature gives the towns the right to take the tolls, which are fixed by law and may be changed or abolished at pleasure. If under these circumstances the towns deem it best for all concerned to let to some third party, responsible to themselves upon his contract, the right to run the ferry at his own expense, taking the tolls as full compensation, who is or can be harmed ? Not those having occasion to use the ferry, for they in no event pay more than the toll fixed by law, and to them the towns still remain responsible for the due and faithful performance of this public duty. Not the state, for in this matter it still deals directly with the towns and knows nothing — 445 — about the party contracted with, and can change or abolish the tolls at its pleasure. Not the towns, for it may be presumed that they would not enter into such an arrangement if it were not beneficial. Not the party contracting, for if he voluntarily makes such a contract, and is simply obliged to perform it, he can suffer no legal harm. If then these towns saw fit to perform this duty by contracting with some party responsible to themselves for its due performance, upon terms agreed upon, and the contract contains no provisions contrary to law or to the sound rules of public policy, and no one concerned is or can be harmed thereby, we think they had the right and power to do so. The next question is, whether the contract in the present case contains any such objectionable provisions. It will be noticed that the contracts of 1866 and 1875 required no payments to be made to the towns by the contractor, while the contract sued upon requires such payment, and many of the objections to the validity of the present contract are based upon this difference. The defendant says the towns cannot by law lease this ferry for profit. Under the circumstances this objection is not a valid one. We know of no law thah prohibits the towns from running the ferry at a profiy®cf they maintain it themselves, it is certainly possible tWt they may make a profit. In such ease they may surely appropriate such profits. What they can thus do directly, they may do indirectly, in the absence of any legal prohibition, and we know of none such. To permit the towns to do this has no tendency to injure the public service or to harm any one. If the legislature thinks the public are paying too much for the service rendered at the ferry, it may be trusted to apply the proper remedy. The defendant seems to think that in entering into such a contract the towns in effect appoint a ferry-keeper for the town, and he claims that they have no right to put up such appointment at auction and sell it to the highest bidder. He asks whether the towns could thus lease out the town pound or the office of constable to the person who will pay the most money for the position. — 446 — In the case before us the towns did not, in the sense claimed, appoint the defendant a keeper of this ferry in 1886. The defendant was not a mere ferry-keeper of the towns. He was an independent contractor, acting for himself and his own advantage, and dealing with the towns, not as with a master or principal, but as with a contracting party. He was in the proper sense of those terms neither an officer, servant nor agent of the towns. Between such a ease and that of a pound-keeper or constable there is no analogy. The latter are well known officers of the law, whose election or appointment is provided for by law; and well known rules of law or of public policy forbid the sale of such offices or the reception of part of the fees as a reward for appointment. The defendant further says that, inasmuch as the tolls are public fees annexed to the discharge of a public duty, they belong to the defendant as the person who discharges the duty, and thus to compel him to pay overa part of the fees is to abridge the compensation of a public officer to that extent. It is doubtless true that, as the actual operator of tli ■' erry, the defendant is clothed with all the rights and powers which the law gives to one holding that position, and to that extent he may be said to be a public officer. But it ¡Rmld be remembered that he was not appointed by law to this position, nor does the law impose upon him, independently of his contract, any duty to maintain the ferry, or give him any right to take the tolls. It does not hold him responsible for its maintenance nor for his negligence in managing it. In fact it does not know him in the matter. Notwithstanding the contract, the duty and responsibility of running the ferry and the right to the tolls still rest upon and remain in the towns. It is only by virtue of a contract which he now seeks to repudiate, that the defendant had the right to run the ferry and take the tolls at all. If he is now compelled to pay for this privilege just what he agreed to pay, neither the law nor the towns can be justly charged with diminishing the fees of a public office, either directly or indirectly. — 447 — The objections urged afford no ground for denying to the towns the right and power to make a contract like the one in question. Assuming that the towns possessed such power, the next question is, whether it was so exercised in the present case that the plaintiff may recover. To begin with, it must be admitted that if the votes of the towns were necessary to the validity of the contract, it has no validity unless it has since been ratified. The votes for want of proper notice were mere nullities. But the contract, if not binding upon the towns originally, might subsequently become binding by ratification. Now both towns had permitted the defendant to operate the ferry and to take and appropriate all the tolls under the contract since April, 1886. In addition to this, and so far as the plaintiff is concerned, we think the vote passed by the town in December, 1887, ratified and made binding upon the plaintiff the contract in question. Why then should not the defendant pay the sum agreed upon to the plaintiff, at least for the two years before suit was brought, during which he was in undisturbed possession of the ferry and tolls ? But independently of this question of ratification, we think the plaintiff is entitled to recover in this action. The duty of maintaining the ferry had been cast by law upon the towns in 1865, and from that time forward they had directly or indirectly performed that duty. The towns could perform this duty, either directly or indirectly, only through the agency of their officers, and the selectmen were the proper agents of the towns to see that the duty was properly performed. Without waiting for any vote or other action on the part of the towns, the selectmen were bound to maintain the ferry, and, in the absence of all instructions from the towns, we think they had power to contract on behalf of the towns with some responsible third party for the performance of this d uty, upon terms similar to those contained in the contract sued upon. In the case at bar the defendant agreed, if the town would allow him to run the ferry and appropriate the fares to him — 448 — self, to pay to the plaintiff for that privilege the sum of twenty dollars per year. The defendant has been allowed to operate the ferry and take the fares for two years, and we know of no good reason why he should not pay as he agreed for those two years. ■ For these reasons we think there was error in the judgment of the court below, and it is reversed. In this opinion the other judges concurred.