Cover v. Town of Baytown

By the Oowrt

Wilson, Oh. J.

Certain persons, inhabitants of the town of Baytown, in February, 1865, raised by voluntary subscription, the sum of sixteen hundred dollars, to be used in payment of bounties to volunteers entering the United States service, to the credit of said town. This sum was to be paid over only on the condition that the amount of three thousand dollars should be subscribed and paid in; which sum it was estimated would be necessary to raise the number *129of recruits required t<* fill the quota of the town. The remaining sum of fourteen hundred dollars not having been subscribed, it was agreed by, and between two of the town supervisors, that town bonds should be issued by them for all moneys then raised, or to be raised to pay bounties as aforesaid, and thereupon and in pursuance of said understanding, the balance of said sum of three thousand dollars was raised, and the whole amount — including the sum of $1600, first subscribed — paid out. On the 15th day of June, 1865, at a meeting of a board of supervisors of said town, a call was issued for a special town meeting to be held on the 24th of June, 1865, “to vote on the question of the town assuming the payment of the money advanced to pay bounties to volunteers, * * and to authorize the supervisors to issue bonds for the payment thereofat which special meeting fifty-five votes were cast, thirty-four for, and twenty-one against issuing such bonds, and assuming the payment of said money. Part of said bonds have been issued, and this action is brought to restrain the issue of the remainder, and the levy or collection of a tax to pay either principal or interest of any part of said sum.

The injunction prayed for should be granted. Towns have only such powers as are conferred expressly, or by fair implication, and the town of Baytown therefore, has no right to raise or appropriate money, or issue bonds in this case, unless such power is given by some statute. It is claimed that sec. 2, chap. 8, Laws, 1862, (extra session) page 49, confers such power. That statute provides that $ie authorities of any city or town that may make appropriations for bounties to soldiers, are empowered to levy a tax for a sum sufficient to cover the appropriation. To bring this case within the purview of that act, it must be held, that these bonds are about to be issued, and this tax raised to pay a sum *130heretofore appropriated by the town for bounties to soldiers. But there is no pretence that this is the case. The two town supervisors who promised that bonds should be issued to the several persons advancing money for bounties, did not pretend or attempt to make an appropriation or issue bonds for such sums. As town officers they had no authority to make such promise, and therefore they created no liability on the part of the town. This case therefore, stands as if no such promise or understanding had ever been made or had, and the town is about to issue these bonds, and assume this indebtedness, not for. the purpose of paying bounties to volunteers, or covering appropriation made by the town for that purpose, but to indemnify private individuals who have paid such bounties.

Whether or not it would be just that the town should, under the circumstances, be permitted to make this appropriation, it is not for us to determine. The sole question for us is, whether the law authorizes such expenditure, and we have no hesitancy in arriving at the conclusion that the question must be answered in the negative. The fact that the statute does not expressly, or by any fair implication, authorize the payment of such claims, is conclusive against the power of the town to assume or pay them, and even if it is admitted that the failure of the Legislature to provide for such cases is a casus omissus, yet it cannot be supplied by the court.

The respondent’s counsel refers to the laws passed in 1861; Laws 1861, page 37 — 8 ; and 1865 — Laws 1865, page 111, 112 — on this subject, as sustaining his view. These laws are very indefinite ; but yet we think it clear that they do not authorize this appropriation. They declare valid the action of towns or-town supervisors in mailing appropriations to pay bounties to soldiers, or to support the families of soldiers, and in. raising by tax a sum sufficient to cover such appropriations, *131or to pay bonds issued by any town for such bounties; but there is no authority given by them, or any other statute of our State, to towns or town officers, to indemnify private individuals who -may have paid or contributed toward the payment of such bounties. This is the only question presented to the court by the counsel in this case, but the court below-in its decision, suggested that there was a defect of parties defendants. Our statute provides that when such objection is not taken by demurrer or answer, the defendant is deemed to have waived it. Where there is clearly a defect of necessary parties, it is perhaps worthy of consideration whether it is not allowable for the court to suggest such defect, and continue the cause until the necessary parties are added: but when this defect first becomes apparent, or is suggested at the hearing, courts will not on that account absolutely dismiss the complaint. See Daniel's Ch. Prac., 3d Am. ed., 292—5, and notes and cases cited in notes.

The judgment appealed from is reversed, and cause remanded.