The defendant’s agency for the plaintiffs was ere ated by the appointment made by the selectmen, under St. 1855, c. 215, § 5. By that statute, the compensation of the agent of a town for the sale of intoxicating liquor is to be fixed by the selectmen who appoint him ; and it is expressly provided that the amount of the compensation is not to depend upon the amount of sales. The selectmen who appointed the defendant, in direct violation of the statute, agreed with him that his compensation should depend on the amount of sales. They thus employed him by an illegal contract, and he proceeded to carry on, under this appointment, a traffic in other respects illegal. No action can be maintained by the town for a failure to account for the proceeds of such a business under such a contract. He would be responsible to the town only for their property received by him ; and this, it seems, he has accounted for.
Exceptions sustained-