The opinion of the court was delivered by
Pierpoint, C. J.This is a petition for a mandamus to be issued by this court, commanding the said selectmen and treasurer to make, sign, and issue notes or bonds of the town of Lunenburgh, to the amount of fifty thousand dollars, to be delivered to the petitioner in payment of stock to that amount in the petitioner’s road, subscribed for by the said town of Lunenburgh, in pursuance of an act of the Legislature of this state, passed at a special session thereof held in March, 1867, authorizing and empowering said town so to do, in aid of the construction of said road, and specifying the manner, conditions, preliminary proceedings, &c., in and under which said subscription should be made, to make it binding upon said town.
The petition alleges that all the requirements of the statute were complied with; that the subscription was duly made, according to the provisions of the statute, for fifty thousand dollars of the said stock; that the town was bound by said subscription, but refuses to issue its bonds, through its officers, the petitionees, *149as authorized by the statute, and required to do by the terms of the subscription.
The defendants, in their answer, by way of defence, allege, among other things, that no subscription for stock in said railroad has ever been made that is valid and binding upon the said town or its said officers, for the reason that the written instrument of assent thereto of a majority of the tax-payers, both in number and amount of the grand list then in force iu such town, required to be obtained by said act of the Legislature, had not been filed and recorded in the town clerk’s office of said town of Lunenburgh, nor a copy thereof lodged and recorded in the county clerk’s office in the County of Essex, as required by said act. This would seem naturally to present the first question for consideration.
The proof shows, and it is virtually conceded, that the instrument of assentwas filed in the town clerk’s office before the commissioners made the subscription, but that it was not recorded until afterwards. It is also conceded, that a copy of the instrument was not lodged nor recorded in the county clerk’s office until after the subscription was made. . What is the effect of this omission upon the validity of the act of the commissioners in making the subscription? The act ■provides, that “ when any instrument of assent herein provided for shall have been.signed and acknowledged by a majority in the manner hereinbefore required, the commissioners named in such instrument shall append thereto a certificate by them subscribed and sworn to, stating that such assent has been signed and acknowledged by such majority as is required by this act, and shall cause such instrument of assent and such certificate to be filed and recorded in the town clerk’s office of such town, and shall also cause a copy of such instrument and certificate, certified by the town clerk of such town, to be lodged and recorded in the county clerk’s office in the county in which such town is situated; and until such records are made, such commissioners shall not proceed to make any contract, subscription, or purchase on behalf of said town.”
It is to be observed that the power conferred upon the town by this act is an extraordinary power. Without the act, neither the town in public meeting.nor by its officers, has any authority to *150bind itself by a subscription for railroad stock. Such an act is outside of the legitimate scope of its municipal power. When the Legislature confers this extraordinary power, it may impose such conditions upon its exercise as it chooses; and such conditions must be complied with, as the power depends upon it. In this case, the Legislature has said that the commissioners shall not make a subscription until the conditions are complied with. This is not directory, it is mandatory. The language is prohibitory ; and by its explicit terms, the commissioners have no authority to subscribe until they have caused the instrument of assent and their certificate to be spread upon the l’ecord. It is not sufficient to put it on file. The act requires it to be filed and recorded. The preservation of such a piece of evidence is of great importance, especially to the railroad company; and the Legislature saw fit to require the commissioners to put it in a state of preservation, before they exercised any authority under it to bind the town — not put it on file and trust to chance for its getting onto the records, where, perhaps, a large part of the people would be opposed to its going.
The requirement is not an idle nor a useless one. It imposes no hardship, and if hardship ensues, it is the result of the neglect of a plain and obvious duty imposed by the statute. But it is urged that the court should put the same construction upon this statute as is put upon the statute requiring deeds to be recorded, to give them effect as against third persons, that is, that the filing of the instrument in the town clerk’s office for record, shall have the same effect as the actual recording. But the cases are not parallel. In the latter case, the sole object of the statute is, to give notice to the world of the existence of the instrument; and our courts have always held that such notice is as effectually given by putting the instrument on file, where it is open to. the inspection of the world, as by spreading it upon the record. The recording in such case has no effect upon the validity of the instrument as between the parties to it. The parties being competent to contract, and having executed the instrument, are bound thereby, whether the instrument is recorded or not. It is not so in this case. Here, the record is of the essence of the contract *151itself. Without it, the commissioners have no power to make the contract. The statute expressly declares that they shall not enter into any contract to bind the town, until the instrument of assent is filed and recorded in both the town and the county clerk’s office. The case stands the same as though the records had never been made.
It is said that the subscription was a conditional one, and not binding until accepted by the railroad company. .If this be so, the commissioners had no more power to make a conditional subscription than an absolute one. If the town can be made liable at all, it must be by force of the subscription made by the commissioners when they had no legal authority to make it. This being so, this court cannot by mandamus order the defendants, officers of the town, to execute and issue the bonds of the town in payment of said subscription, and the petition is dismissed with cost.
This view of the case renders it unnecessry for us to consider the other questions that have been presented and discussed in the argument.