It appears, from the statement of the case, that the authorities of the town did not furnish the defendant with any sufficient warrant by which he could collect taxes not voluntarily paid. To the extent that he received taxes voluntarily paid he would undoubtedly be obliged to account and pay over to the town. I cannot see anything which the town has done or forborne to do in consequence of the collector going on as he did, and with the authority which he had; *Page 277 neither can I see anything which, under any mural or equitable consideration, makes it right that the defendant should suffer for what was undoubtedly a mistake, for which he was not peculiarly responsible. The other two selectmen undertook to act as a board of selectmen, and to appoint him collector, and he Cannot be considered as in any way acting as selectman in that. The mistake was at least as much the mistake of the selectmen as it was that of the collector, and it would be a very harsh, and, I think, unjustifiable application of the law of estoppel to bring this defendant within its operation. I think, therefore that he is not liable for the uncollected balance of the tax list.
It is conceded that the vote of the town of Pittsburg, July 5, 1864, was beyond the power of the town to pass, and therefore not binding upon the town unless duly ratified under the act of July 8, 1869. The vote of July 6, 1864, was, to pay to men who had been or should thereafter be drafted from the town or to the substitutes for such conscripts, the sum of $100. This vote is in its terms broad enough to include all persons who were drafted, and freed themselves by paying commutation money.
The article in the warrant for the town-meeting, held under the act of 1869, was as follows, viz., "To see if the town will vote to ratify, the vote, or article, of the meeting 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."
This article did not propose to ratify the vote of July 5, 1864, to its full extent; but it did propose to ratify it partially, i. e., so far as it gave $100 each to men who were drafted from May 1 to July 1, 1864, and furnished substitutes to apply on said town's quota.
It appears from the case that this limited ratification of the vote of July 5, 1864, was by no means unanimous, having been passed by a majority of one.
I infer from this, that in 1870 the tax-payer of Pittsburg were not much inclined to ratify the vote of 1861, and that if it had been proposed at the meeting in 1870 to ratify that vote to its full extent, the proposition would have failed. I do not therefore see any reason to suppose that any mistake was made in drafting the warrant for the meeting of 1870. It is more probable that the article was inserted in the form in which it was, for the purpose of limiting the action of the town to a single class of those persons who were embraced in the general terms of the vote of July 5, 1864. The article was probably intended to express the question whether the town would ratify the vote of July 5, 1864, in so far as it said $100 to men who were drafted from May 1 to July 1, 1864, and furnished substitutes to apply on said town's quota. As Roswell W. Danforth and Charles H. Sargent did not come within the terms of this vote, they were not entitled to the benefit of it. The orders in question therefore were not valid; the town was not obliged to pay them; and the defendant cannot have credit for them in this suit.