It will not suffice for the maintenance of this action that honor and fair dealing would seem to call upon the inhabitants of Standish to fulfil the expectations which the votes of the town apparently induced the plaintiffs to indulge. Unless the case shows that those expectations and the consequent action of thé railroad company in building their road through the town were based upon some valid corporate act of the town, creating such a contract between the town and the railroad company as is set forth in the writ, the plaintiffs cannot recover.
There is one defect in the plaintiffs’ proof (if no more) which we regard as fatal.
The power of the town to bind itself in any manner in the premises, is found in the Public Laws of 1867, c. 119, which authorizes a town at any legal meeting duly notified and holden for that purpose, to raise money to an amount not exceeding a certain per cent, of the valuation of the town, “and to appropriate the same to aid in the construction of any railroad in this state, in such manner as they shall deem proper, provided that two-thirds of the legal voters present and voting at such meeting, shall vote therefor.”
To exercise this power effectively, so as to bind the town, it must be shown that not only the raising of the money, but its appropriation to aid in the construction of the railroad and the manner of its appropriation were all settled by the requisite two-thirds vote.
*67Two-thirds of the voters at the meeting might be in favor of raising the money to aid in the construction of the railroad, but unless two-thirds of those present and voting could agree as to the manner in which it should be appropriated to that end, the action, of the town in the execution of the power given by the statute would be defective and invalid.
For example, if a portion of those constituting the two-thirds majority in favor of raising the money were in favor of loaning it to' the railroad company on a mortgage of the stock and franchise of the road, and a portion were disposed to apply it in payments upon stock to be subscribed for, and the requisite two-thirds vote could not be obtained to appropriate it in either manner, the vote of a majority merely would not constitute a valid appropriation of it for either purpose.
We cannot assent to the plaintiffs’ proposition that the manner of the appropriation in aid of the road is a mere non-essential incident to the principal question. It is a matter of vital moment, placed by the express terms of the statute within the proviso which requires a two-thirds vote.
The foundation of the plaintiffs’ case must fail unless there is proof of a two-thirds vote appropriating the money to the payment for stock to be taken by the town.
The record of the town meeting held January lé, 1869, exhibits a vote to raise by loan the sum of twenty thousand dollars to aid in the construction of the Portland and Ogdensburg Railroad provided said road shall be located and built through the town of Standish between Sebago pond and Saco river, with the following statement appended: “The question was decided by ballot as follows, to wit: whole number of ballots cast was one hundred and eighty-one (181) by yes and no; in favor of the motion, one hundred and twenty-one — yes, (121); noes, sixty (60).”
The requisite majority seems to have been obtained on the vote to raise the money. But it still remained to be determined in what manner the town would deem it proper that the money should be appropriated : and all that appears in relation to that matter is that the town voted to “hire the sum of $20,000 for a term of not less than twenty years but payable at the pleasure of *68the town after five years, and that the said sum be and the same hereby is appropriated to the payment for the same two hundred shares of the capital stock of the Portland and Ogdensburg Kailroad, to be subscribed for by the town in aid of the construction of that railroad.”
The plaintiffs’ counsel claims that the word “voted” in the record “implies that the proportion of the legal voters present and voting upon the proposition necessary for its adoption by the meeting were in favor.”
As a general thing votes are passed by majorities. The exceptions requiring any greater proportion of the whole number are so infrequent that a town clerk would hardly consider his record complete if it did not exhibit all votes thus passed. If it was understood that any particular proportion of the whole number voting was required in order to make the vote valid and binding, we should expect to find the state of the vote recorded. In the case before us it appears that as a part of the record of the vote to raise the money, the details are scrupulously given in words and figures. We think the true inference from the omission to 3nake any such statement respecting the vote now under consideration is, that it was not supposed to be necessary to have a clear two-thirds vote for the proposition, and therefore no steps were taken to ascertain how'the vote stood except that a majority voted for it. It is insisted by the plaintiffs’ counsel that the maxim “omnia prcesumuntur rite,” &c., is applicable, and hence the proper presumption from the record of the vote as it stands is that the required majority was obtained for it.
Where, as here; it is incmnbent upon the plaintiff to establish the existence of a contract with a municipal corporation, and such contract can be legal and binding only when agreed to by something more than a mere majority vote, we think its establishment should not be left to depend upon a presumption so loose and unsatisfactory. A fact so important should be verified on the spot; and when thus verified, the means of proving it are not far to seek. Assuredly we have no inclination to relieve towns from' any legal obligations which they may voluntarily assume for the purpose of securing to their inhabitants the advantages of railroad *69transportation for themselves and their commodities. But while plenary proof of a contract to that end is so readily attainable whenever one is in fact made, it is but just that the railroad company which claims the benelit of it should establish its existence without resorting to the vague and unreliable presumption upon which the case is rested here. In the absence of all proof except the record before us, we think the plaintiffs have failed to make it appear that two-thirds of the legal voters present and voting at the meeting, voted for any proposition which could be regarded, even if accepted and acted on by the railroad company, as creating such a contract as the plaintiffs have alleged.
It is needless, perhaps to add that without proof of this fact, no liability whatever on the part of the town is shown to exist.
Thus, even if it could be successfully argued that the votes of the town, had they passed by the requisite majority, would have amounted to a proposition which when accepted by the railroad company would constitute a contract to take and pay for two hundred shares of the capital stock of the company, without a formal subscription by the agents of the town, and that the assent of the railroad company thereto is sufficiently shown by the building of the road in conformity witln the condition in the vote, and by the request to the selectmen to subscribe, and the subsequent assessments upon the shares as if subscribed for and taken by the town, still, the foundation of the plaintiffs’ claim would be fatally defective.
It is not necessary for us here and now to determine whether or not an actual formal subscription for the stock was indispensable.
Plaintiffs nonsuit.
Appleton, C. J., Walton, Dickerson, Virgin and Peters, JJ., concurred.