(dissenting.) I cannot concur in the result to which the majority of the court have come upon the question whether the plaintiff town exercised its optional right to make the bonds payable at the end of ten years. It is true the committee has found that “ on the 25th day of February, 1880, the town gave notice by publication in various newspapers that the bonds would be paid at the office of the treasurer on the 1st day of April, 1880, and that interest upon them would cease at that time.” But the committee has also found upon what action or attempted action of the town this finding is based, and if the premises do not warrant the conclusion, then the finding ceases to be a finding of fact. Let us examine the premises.
On the 7th day of October, 1878, the town passed the following vote:—“ That the selectmen be, and they hereby are authorized (if in their judgment it seems advisable) to call in the bonds issued by the town amounting to forty-*509eight thousand dollars, and to issue new bonds at a lower rate of interest.” At this time it could not be known whether or not it would be for the interest of the town to call in the. bonds at the expiration of ten years. That would depend upon the question whether or not new bonds could be issued at a lower rate of interest, and therefore the town merely authorized the selectmen, when the proper time came, to exercise their best judgment in the matter. The selectmen did nothing whatsoever in regard to the bonds till the .3d day of February, 1880. The time was now at hand when action must be taken to make the bonds ten-year bonds, or they would become twenty-year bonds to all intents and purposes. For a period of sixteen months the selectmen had been unwilling to exercise the discretionary power conferred upon them by the vote of the town on the 7th day of October, 1878, and were still unwilling, as clearly appears by their action, for they issued a call for a town meeting to convene on the seventh day of the same month to instruct them what to do in the matter. This as clearly makes a refusal on their part to act under the vote of 1878 as would a finding in express terms that they refused to exercise the discretion at that time conferred upon them. What can be. clearer ? After having ample power, and ample opportunity to use it for so long a period, and when at last there could be no further delay, we see the selectmen calling upon the town to decide the matter and give them particular instructions what to do. The town formally gave them particular instructions at the meeting which convened on the 7th day of February, 1880, .as requested, and formally directed them to issue new bonds for the redemption of the old ones, at a rate of interest not exceeding four and one half per cent. The town further formally instructed them in relation to all the steps to be taken in issuing the bonds, and in relation to the redemption and destruction of the old bonds. New bonds were issued and the old bonds except those in controversy were redeemed and destroyed in accordance with these formal instructions of the town. Now can there be any doubt *510under which vote of the town the selectmen acted in calling in the bonds? I think not. It was not enough that the selectmen had discretionary authority to call in the bonds by the vote of October, 1878. They must intentionally exercise the .power in order to make the act the act of the town. The authority conferred involved judgment and responsibility. Would they exercise it after sixteen months delay, and after, as they supposed, the town had instructed them to call in the bonds ? I think not. .
But it appears -that the warning for the meeting of the town on the 7th of February, 1880, was fatally defective in that but four days notice was given for the meeting, and consequently all the proceedings of that meeting were null and void. It was so held by this court in the recent case of Brooklyn Trust Co. v. Town of Hebron, 51 Conn., 22. But it clearly appears that the selectmen and the voters of the town supposed that the warning was sufficient and the meeting legal; consequently it had the same effect upon the selectmen as it would have had if it had been legal. The case cited had not then been decided. Indeed, it must be conceded that the selectmen acted under it in the issuing of the new bonds, and in the redemption and destruction of the old ones. They followed implicitly the supposed instructions of the town in all these transactions; and is it reasonable to conclude, that in calling in the bonds they exercised the discretion conferred sixteen months before, when the meeting of February 7th, 1880, virtually instructed them so to-do ? Is it likely that they made an exception in this particular, and followed all the other supposed instructions ? I think not. Furthermore, if the warning of the meeting of February 7th, 1880, had been legal, the votes of the town at that meeting would have revoked the discretionary authority conferred by the vote of October 7th, 1878. The selectmen supposed that it was legal. Would they have intentionally exercised authority that they believed had been revoked, and that too when the revocation would relieve them from all responsibility in the matter ? I think not.
*511I think therefore that the town never exercised its optional right of making the bonds payable at the expiration of ten years from their issue ; that this was not done by the vote of the town on the 7th day of October, 1878, for the reason that the selectmen never exercised the discretion therein conferred; and that it was not done by the votes formally passed at the meeting on the 7th day of February, 1880, for the reason that all the proceedings of that meeting were null and void.
I think there is error in the judgment appealed from