FROM COOS CIRCUIT COURT. The questions before us arise upon the assessment of damages after default in the circuit court.
One Chase was collector of taxes in the town of Pittsburg in the year 1870, and the warrant and list for that year were duly committed to him.
The warrant and list were signed by Calvin J. Danforth and Parker T. Danforth, who were two of the three selectmen. Before January 9, 1871, Chase removed from town, and the defendant — Calvin J. Danforth — was appointed to fill the vacancy occasioned by Chase's removal, his appointment or commission being signed by his two associate selectmen, Parker T. Danforth and F. C. Jacobs; and the bond in suit was thereupon executed.
At that time there was a sum of money remaining uncollected upon the list of taxes which had been committed to Chase, and the same list, and the warrant accompanying it were handed over to Danforth without alteration; and he has never had any other list or warrant, for the collection of those taxes, than the warrant and list originally committed to Chase.
Danforth proceeded, however, to collect the taxes (no person resisting the payment of his taxes for the reason of any alleged invalidity), and has collected all the amount on the list, except the sum of $141.40. *Page 274 The town seeks to charge him for that sum; and the defendants claim that he cannot be legally held to account for it, by reason of the alleged invalidity of the warrant and list. This issue presents the first question for our consideration.
I. The uncollected taxes ($141.40) should be deducted from the sum of $534.10, with which the plaintiffs seek to charge the collector. His warrant was not sufficient to authorize him to collect taxes which the parties owing them were not willing to pay. Gen. Stats., ch. 53, sec. 8. He is not estopped to deny the invalidity of his warrant.
In accepting the appointment of collector, he did no act in the capacity of selectman. He could not appoint himself; but, like any other citizen, and in a private capacity, he received a legal appointment from the other selectmen. How can he be estopped by their act? What misrepresentation or concealment with knowledge, on his part, has he made, whereby the town or the other selectmen have been induced to change their position? None is suggested. He was appointed, and accepted the appointment and the accompanying list of taxes, on no representation of his own, but on the supposition, by all concerned, that the whole transaction was legal and fair. Stevens v. Dennett, 51 N.H. 333.
The defendants claim that from the amount collected by Danforth ($1,033.74) should be deducted $300.66, being the amount of three orders drawn by the selectmen in favor of R. W. Danforth and C. H. Sargent, and directed to the town treasurer. If the town is legally liable to pay these orders, they should be deducted from the amount in the collector's hands, and applied for the benefit of the defendants.
Some time before July 5, 1864, Roswell W. Danforth and Charles H. Sargent had been drafted from Pittsburg into the military service of the United States, and to free themselves from such draft had paid commutation money, $300 each. On said July 5, 1869, a town-meeting was held, at which it was voted "to pay to men who have been or shall hereafter be drafted from this town, or to the substitutes for such conscripts, the sum of $100." The fourth article in the warrant for that meeting was "to see what sum of money the town will vote to pay, in addition to the sum already raised, as bounty to all the men drafted into the service of the United States, and accepted, from May 1, 1864, to July 1, 1864." Voted, "to dispense with the fourth article in the warning."
July 8, 1869, the legislature passed an act "to ratify certain votes and acts of the town of Pittsburg." Acts of 1869, ch. 126, page 371.
At a meeting of the legal voters of Pittsburg, held January 26, 1870, the second article in the warrant was "to see if the town will vote to ratify the vote, or article, of the meeting in said town, of July 5, 1864, to pay $100 to men who were drafted from May 1 to July 1, 1864, and furnished substitutes to apply on said town's quota." "Voted on article second in the warrant. Whole number of votes cast was seventy-three [73]; number of votes in favor of ratifying said article second, or ratifying the votes of said town of Pittsburg, of July *Page 275 5, 1864, was thirty-seven [37]; and the whole number that were not in favor of said ratification, and voted no, was thirty-six [36]."
The orders in question were given to Danforth and Sargent, on account of their supposed right under said votes, and were for $100 to each of them, and accrued interest thereon. These facts present the second question for our consideration.
II. At a town-meeting in Pittsburg, held July 5, 1864, it was voted "to pay to mell who have been or shall hereafter be drafted from this town, or to the substitutes for such conscripts, the sum of $100." At the same meeting the town voted, upon an article in the warrant, to see what sum, in addition to what had been already raised, the town would vote to pay to those men who were drafted and accepted between May 1 and July 1, 1864.
The town voted to dispense with this article, which thereby became a nullity, leaving the action of the town a vote to pay to all who have been or shall hereafter be drafted, or to each substitute for such man, $100.
Now it is manifest that the vote which was adopted, covered and included within the scope of its purport and intention all that was embraced in the article which the town rejected.
The purport of the whole action of the town was, that they would not make any distinction in favor of those who had been drafted and accepted within a specified time, and who had served in person and not by substitutes; but that they would pay to all who had been or might be drafted at any time (whether before or after the first of May or the first of July), or to their substitutes, the sum of $100.
But all this action was ineffectual and without authority, until and unless it should be ratified under the provisions of the act of 1869, by vote of the town at a meeting duly warned for that purpose.
Under this act a meeting was called to vote on the following article in the warrant: "Art. 2. To see if the town will vote to ratify the vote, or article, of the meeting in said town of July 5, 1864, to pay $100 to men who were drafted from May 1 to July 1, 1864, and furnished substitutes to apply on said town quota."
Now, whatever the selectmen may have intended by this article, if their purpose was to take the sense of the voters upon the question of the ratification of the vote which was passed, and not of the article which was rejected, they were singularly unfortunate in manifesting such purpose, for, in very distinct terms, they ask the inhabitants to vote whether they will ratify the article which they had previously dispensed with.
Whatever may be understood by the ratification of an article which had been "dispensed with," it might very well be regarded as the suggestion of a reconsideration of the subject-matter of the rejected proposition.
Why did not the selectmen, if they really meant what it may be said they probably did mean, say so in plain and natural terms, like these: "To see if the town will vote to ratify the vote of the meeting, *Page 276 and `to pay to men who have been or shall hereafter be drafted from this town or to the substitutes for each conscripts the sum of $100'"? and, since they did not expressed themselves in such plain and natural language, may it not be reasonably inferred that the selectmen did mean what they did say?
The selectmen certainly expressed themselves clearly enough in this latter view of the article, for they specially call the attention of the voters to those men, and only those, who were drafted during the period of two months, between the first day of May and the first day of July.
The object of specific articles in a warrant is, to give information to the voters of the subject-matters to be acted on in town-meeting, that the voters may be enabled to act deliberately and intelligently; and that the will of individuals may not be subjected to the will of a majority any further than it is subjected by law. Adams v. Mack, 3 N.H. 498; Torry v. Milbury, 21 Pick. 68.
No doubt the subject-matter being plainly referred to, may properly include authority to act upon minute specifications and particulars included and necessarily involved in that "subject-matter," and which need not be in particular terms enumerated: but in this case the language of the warrant is narrow and restrictive, and, instead of bringing before the voters the subject-matter of their action on July 5, 1864, which was the payment of $100 each to all who were ever drafted from the town of Pittsburg, their attention is directed to and concentrated upon those only "who were drafted from May 1, to July 1, 1864."
Intelligent voters, reading this warrant in the light of its most natural import, might refrain from opposition to the payment of a bounty to those who were drafted within the limited period, although they might be disposed to resist such payment to a greater number of men. See Child v. Colburn,54 N.H. 71.
I agree with the position of the plaintiffs, therefore, that in order to avail themselves of this vote, the defendants must show that the parties to whom these orders were given were drafted from May 1 to July 1, 1864, and furnished substitutes to apply on the town's quota. Instead of this, the case shows that at whatever time they were drafted they furnished no substitutes, but paid commutation; and these orders are in payment therefor. The amount of these orders, therefore, cannot be deducted from the money in the collector's hands.
By the provisions of the case, then, the plaintiffs should have judgment for $451.95.