
121 U.S. 121 (1887)
BLOOMFIELD
v.
CHARTER OAK BANK.
Supreme Court of United States.
Argued January 5, 6, 1887.
Decided April 4, 1887.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT.
*128 Mr. Charles E. Perkins for plaintiff in error. Mr. A.F. Eggleston was with him on the brief.
Mr. Alvan P. Hyde for defendant in error.
*129 MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.
We have not found it necessary to consider how far a town in Connecticut has the power to give promissory notes, because in our opinion the evidence in this case is incompetent to prove that this town ever authorized its treasurer to make the notes in suit, or did any act which made them binding on the town.
Towns in Connecticut, as in the other New England States, differ from trading companies, and even from municipal corporations elsewhere. They are territorial corporations, into which the State is divided by the legislature, from time to time, at its discretion, for political purposes and the convenient administration of government; they have those powers only, which have been expressly, conferred upon them by statute, or which are necessary for conducting municipal affairs; and all the inhabitants of a town are members of the quasi corporation. 1 Swift's System, 116, 117; Granby v. Thurston, 23 Conn. 416; Webster v. Harwinton, 32 Conn. 131; Dillon Mun. Corp. §§ 28-30.
In Connecticut, as in Massachusetts and Maine, by common law or immemorial usage, the property of any inhabitant may be taken on execution upon a judgment against the town. Atwater v. Woodbridge, 6 Conn. 223, 228;[1]McLoud v. Selby, 10 Conn. 390;[2]Beardsley v. Smith, 16 Conn. 368;[3] 5 Dane Ab. 158; Chase v. Merrimack Bank, 19 Pick. 564, 569;[4]Gaskill v. Dudley, 6 Met. 546;[5]Adams v. Wiscasset Bank, 1 Greenl. 361;[6]Fernald v. Lewis, 6 Greenl. 264. See also Hopkins v. Elmore, 49 Vt. 176; Rev. Stats. N.H. 1878, c. 239, § 8.
A town cannot make a contract, or authorize any officer or agent to make one in its behalf, except by vote in a town meeting duly notified or warned; and the notice or warning must specify the matter to be acted on, in order that all the inhabitants (whose property will be subject to be taken on execution to satisfy the obligations of the town) may know in advance what business is to be transacted at the meeting. *130 If the subject of the vote is not specified in the notice or warning, the vote has no legal effect, and binds neither the town nor the inhabitants. No one can rely upon a vote as giving him any rights against the town, without proving a sufficient notice or warning of the meeting at which the vote was passed. Reynolds v. New Salem, 6 Met. 340; Stoughton School District v. Atherton, 12 Met. 105; Moor v. Newfield, 4 Greenl. 44; Dillon Mun. Corp. §§ 266-268.
Upon this point the statutes and decisions of Connecticut are perfectly clear.
The statutes require the annual town meetings to be held in October, November or December, and permit special meetings to be convened when the selectmen deem it necessary, or on the application of twenty inhabitants qualified to vote in town meetings; and provide for notifying or warning both annual and special meetings as follows: "When town meetings are to be held, a notification, either written or printed, specifying the objects for which they are to be held, signed by the selectmen, or a majority of them, set upon the sign post or sign posts in the towns, at least five days inclusively before the meeting is to be held, shall be sufficient notice to the inhabitants to attend such meeting." Rev. Stats. 1866, tit. 7, §§ 19, 21; 1821, tit. 103, § 2. They also provide that "the warning of every meeting of any borough, city, ecclesiastical society, school society, school district, or other public community, shall specify the objects for which such meeting is to be held." Rev. Stats. 1866, tit. 7, § 232.
Whenever a town meeting is warned agreeably to the provision above quoted, the statutes, with a view to preserving the best evidence of the contents of the notice or warning, make it the duty of the selectmen to cause a copy or duplicate thereof to be left with the town clerk before the meeting, and the duty of the clerk to record it. Rev. Stats. 1866, tit. 7, § 19. But these duties are imposed on the selectmen and the clerk as public officers, not as agents of the town. They are not made duties of the inhabitants of the town in their corporate capacity, but official duties of those charged with their performance. The neglect of the officers to file or to record a sufficient *131 notice of a town meeting is theirs only, and not the neglect of the town. So far as the town is concerned, the utmost effect of an omission to record the notice is to authorize its contents to be proved by other evidence. Brunswick First Parish v. McKean, 4 Greenl. 508.
The annual election of town officers, or any other act which the statutes require to be done by the inhabitants at each annual meeting, might perhaps be sufficiently proved by the record of what was done at the meeting, without proving a special notice of it in the warning. Thayer v. Stearns; 1 Pick. 109; Gilmore v. Holt, 4 Pick. 258. But, with those exceptions, such a notice is a necessary prerequisite to the validity of any act of the town, either at the annual meeting or at a special meeting.
The statutes, for instance, provide that "the inhabitants of the respective towns, in legal meetings assembled, shall have power" to make certain by-laws for the welfare of the towns. Rev. Stats. 1866, tit. 7, § 31; 1821, tit. 103, § 6. But it has always been held that no by-law, though passed at an annual meeting, is valid, without a previous notice thereof in the warning.
In the leading case, decided in 1824, of Hayden v. Noyes, 5 Conn. 391, where the annual meeting of a town was warned to choose town officers, "and to do any other business then thought proper by said meeting," the Supreme Court of Errors decided that by-laws passed at that meeting, to regulate the shell fishery of the town, were void; and Chief Justice Hosmer, delivering judgment, said:
"By the act concerning towns, the mode of warning town meetings is specially prescribed. There is to be a notification in writing, `specifying the objects for which they are to be held,' signed by the selectmen, and set upon the public sign post or posts in the town, at least five days before the meeting. A meeting not warned agreeably to the mode designated is no legal congregation of the town; and its acts in that capacity are void. If the object be to regulate the clam and oyster fisheries, that object must be specified in the warning, in an intelligible manner. A notification to assemble a town meeting for a lawful purpose, duly specified, and to do other *132 town business, is, except as to the specification, as entirely exceptionable as if the town were warned to meet and do any business they should think proper. It is the purpose of the law, not to prescribe a frivolous form, but to give substantial information. If the object of the meeting is specified, it will present a motive to the inhabitants to be present, and they will leave business, even if it be pressing, provided they feel an interest in the subject to be determined. On the other hand, if the subject is unimportant, and any of the inhabitants should feel no concern in the result, they may with safety pursue their ordinary business; and this certainly is matter of convenience." "The warning, in the case before us, neither conforms to the words nor spirit of the law, and, if sanctioned, would repeal the statute." 5 Conn. 395, 396.
In a similar case in 1830, that decision was followed, and it was adjudged, reversing the judgment of a lower court, that it was incumbent on the party offering the vote of the town in evidence, and seeking to avail himself of it, to prove that the meeting was duly warned, although the vote purported on its face to have been passed by the town "in legal meeting assembled;" and the court said: "The borough and the town are, confessedly, inferior corporations. They act not by any inherent right of legislation, like the legislature of the State; but their authority is delegated; and their powers, therefore, must be strictly pursued. Within the limits of their charter, their acts are valid; without it, they are void. It having been established, in the case of Hayden v. Noyes, above cited, that to render an act of a town, precisely of this character, valid, it must appear that the meeting of the town had been specially warned for that purpose; and this not appearing on the doings of the town, in this case, nor from any proof aliunde to establish the fact, the judgment is erroneous. Perhaps it should appear on the face of the proceedings; but, at least, he who seeks to enforce the act should prove such warning to have been given." Willard v. Killingworth, 8 Conn. 247, 254.
There is nothing in the later decisions of that court, which tends to shake the rules thus established.
In Brownell v. Palmer, 22 Conn. 107, the vote of the town, *133 which was presumed to be valid, without proof of the warning, was a vote passed at an annual meeting twenty-five years before, accepting a discontinuance in due form by the selectmen of an ancient highway, which was proved to have been disused ever since some time before that vote, and which there was strong ground therefore for presuming to have been discontinued. See Avery v. Stewart, 1 Cush. 496; Fletcher v. Fuller, 120 U.S. 534. In the case of a recent vote, the rule is otherwise. For instance, in State v. Taff, 37 Conn. 392, a vote of a town, fifteen years before, accepting the laying out of a highway by the selectmen, was held insufficient for want of any proof of the warning; and the highway was established upon the independent ground of dedication.
In Isbell v. New York & New Haven Railroad, 25 Conn. 556, the town clerk's record of the meeting at which the by-law in question was passed recited that the meeting was "legally warned and held for the purpose of making a by-law" upon the particular subject; and the case was thus reconciled with that of Willard v. Killingworth, above cited. The record made by the clerk in the performance of his legal duty was sufficient, and perhaps conclusive, evidence of the fact recorded. Thayer v. Stearns, 1 Pick. 109.
In Society for Savings v. New London, 29 Conn. 174, the sufficiency of the warning was not questioned.
In Baldwin v. North Branford, 32 Conn. 47, a vote passed upon an insufficient warning, and therefore invalid, was upheld because it had been ratified by the town at a subsequent meeting duly warned and held under a confirmatory act of the legislature.
The two remaining Connecticut cases, cited at the bar, were suits to compel towns to guarantee the bonds of a railroad corporation, in accordance with votes passed under authority conferred by statute.
In the one, the vote was passed at a meeting duly warned and held; and the decision was that the vote, as recorded by the town, taken in connection with the warning, which was also recorded, appeared to have been taken by ballot, as required by law, and that the town was estopped to show, by an *134 amendment of the record, made after the railroad corporation and its contractors had acted upon the vote for three years, that the vote was not so taken. New Haven, Middletown & Willimantic Railroad v. Chatham, 42 Conn. 465. The case is an exceptional one, depending on its peculiar circumstances. Dillon Mun. Corp. § 164, note.
But in the other case, in which the warning, as recorded, showed that it had been posted less than the requisite number of days before the meeting at which the town voted to guarantee the bonds on certain conditions, it was adjudged that the vote was invalid; and that the town was not estopped to prove the defect in the warning, and the consequent invalidity of the vote, by a recital in the record that the vote was passed at a meeting "legally warned and held," or by subsequent proceedings, after the railroad corporation had substantially complied with those conditions, by which the town, under a warning to determine what disposition should be made of the bonds of the railroad corporation held by the town, and to pay interest on its bonds, and to take such action as to secure the completion of the railroad, voted to let the conditions of the former vote remain as they were. The court said, "The assembled voters are without power to act for or bind the town, unless they have been called together in the statutory way and at the statutory time;" and also, after observing that "every voter who read the call" for the second meeting "might safely absent himself from the meeting in the certainty that under the call it could not impose the burden of a guarantee upon the town," added, "We cannot order the town to guarantee any bonds, unless it is made clear that at a lawful meeting, so called as to give the voters full knowledge of its purpose, they have assumed the burden; it is not to be placed upon them by inference." Brooklyn Trust Co. v. Hebron, 51 Conn. 22, 29, 30.
It follows that the vote passed at the annual meeting of the town of Bloomfield in 1868, purporting to authorize the town treasurer to borrow money for the use of the town, was invalid, for want of any evidence that the subject was specified in the warning. The statement in the record of the meeting, *135 that it was "legally warned," shows only that it had been duly warned for some purposes, not for what purposes.
The Circuit Court ruled that this vote did not of itself authorize the treasurer to borrow money; but submitted the vote, with the other evidence in the case, to the jury, as sufficient to authorize them to find either that the town had made him its general agent to borrow money, or that it had ratified his acts, or that it was estopped to deny their validity.
That evidence consisted only, 1st. Of forty-four notes made by the treasurer to sundry individuals after the passage of that vote; 2d. Of the reports made in print by the selectmen and treasurer to the annual meetings of the town from 1869 to 1878 inclusive, showing various sums received or paid "on town notes," and a gradually increasing "indebtedness of the town by notes;" and the records of those meetings, showing that in 1869 such reports were "read and accepted," and that in after years no action on them was taken by the town; 3d. Of a vote passed by the town in 1880, authorizing the selectmen to make notes in behalf of the town to take up and cancel certain memoranda of indebtedness, made by officers of the town, dated July 1, 1879, for money lent to the town by various persons; and the acts of the selectmen pursuant to that vote.
Any ratification of an act previously unauthorized must, in order to bind the principal, be with full knowledge of all the material facts. Owings v. Hull, 9 Pet. 607; Bennecke v. Insurance Co., 105 U.S. 355. And no estoppel in pais can be created, except by conduct which the person setting up the estoppel has the right to rely upon, and does in fact rely and act upon. Burgess v. Seligman, 107 U.S. 20; Scovill v. Thayer, 105 U.S. 143; Brant v. Virginia Co., 93 U.S. 326.
The vote of those who attend a town meeting being of no validity against the town or its inhabitants, unless the object of the vote is set forth in the notice or warning of the meeting, the town can no more ratify an act afterwards, than authorize it beforehand, except by vote passed pursuant to a previous notice specifying the object. Without the indispensable prerequisite of such a notice, those present at a town *136 meeting have no greater power to bind the town indirectly by ratification or estoppel, than they have to bind it directly by an original vote. Marsh v. Fulton County, 10 Wall. 676; Daviess County v. Dickinson, 117 U.S. 657; Norton v. Shelby County, 118 U.S. 425; Pratt v. Swanton, 15 Vt. 147; Lander v. Smithfield School District, 33 Maine, 239; American, Tube Works v. Boston Machine Co., 139 Mass. 5.
By the statutes of Connecticut, it is made the duty of the selectmen to superintend the concerns of the town, to adjust and settle all claims against it, and to draw orders on the treasurer for their payment, to keep a true and regular account of all the expenditures of the town, and to exhibit the same at the annual meeting; and it is the duty of the treasurer to receive all the money belonging to the town for taxes, fines, forfeitures, debts or otherwise, and to make an annual statement of the receipts of money into the treasury, and the expenditures, which shall be adjusted by the selectmen, and laid before the town at the annual meeting. Rev. Stats. 1866, tit. 7, §§ 45, 67; 1821, tit. 103, § 8, tit. 105, § 20. But neither the selectmen nor the treasurer have any general power to make contracts, to borrow money, or to incur new debts, in behalf of the town, except for particular objects having no relation to this case. Sharon v. Salisbury, 29 Conn. 113; Ladd v. Franklin, 37 Conn. 53; Goff v. Rehoboth, 12 Met. 26.
The reports made by the selectmen and the treasurer to the annual meetings, in performance of the duties imposed upon those officers by statute, were not, unless expressly approved or acted on by the town at a meeting duly held upon sufficient warning, evidence to charge the town with liability for debts which those officers had no authority to contract. The only reports of the selectmen and treasurer upon which the town took any action were those of 1869. The acceptance by the town of those reports might be a ratification of the debts and payments therein stated, but could have no further effect. Burlington v. New Haven & Northampton Co., 26 Conn. 51; Benoit v. Conway, 10 Allen, 528; Dickinson v. Conway, 12 Allen, 487; Arlington v. Pierce, 122 Mass. 270; Bean v. Hyde Park, 143 Mass. 245. In Kinsley v. Norris, 60 N.H. *137 131, cited for the plaintiff, the town, under an appropriate article in the warrant, had voted not only to accept the report of the doings of an agent, but also to give him additional powers.
There is nothing in the case at bar, which tends to show that any of the promissory notes to individuals, offered in evidence, or of the notes mentioned in the annual reports of the selectmen and treasurer accepted by the town in 1869, or in the vote of the town in 1880, were held by the plaintiff. The bill of exceptions explicitly states that no evidence was offered that the town in town meeting assembled knew that its treasurer kept his bank account with the plaintiff, or was borrowing of the plaintiff the money represented by the notes in suit, or by notes of which these were renewals; and also states that the plaintiff disclaimed any advantage by virtue of being the indorsee, instead of being the payee, of the notes in suit.
The bill of exceptions does state that it appeared by the evidence that the plaintiff, from the beginning of its account with Mills as treasurer, "supposed or thought that Mills was authorized to borrow money for the use of the town and give its notes therefor." But it contains nothing tending to show that the supposition was based upon anything but false representations of the treasurer, which would not bind the town. Railroad Bank v. Lowell, 109 Mass. 214; Agawam Bank v. South Hadley, 128 Mass. 503. Nor was there any evidence that the plaintiff, at the time of lending money to the treasurer, knew of any acts of the town or of the selectmen since the vote of 1868; and the vote of 1880, and the acts of the selectmen under it, took place after the notes in suit had been made and delivered to the plaintiff, and therefore could not have influenced it in taking them.
Upon the whole case, there was no proof of original authority, or of subsequent ratification, or of estoppel, to bind the defendant town; none of original authority, for want of any vote passed pursuant to due notice in the warning; none of ratification, for the same reason, as well as because it was not shown that the acts proved were done with intent to ratify the acts of the treasurer in issuing the notes sued on, or with *138 knowledge of all the material facts attending their issue; none of estoppel, because there was no evidence of any acts of the town, which the plaintiff had a legal right to rely upon, or did in fact rely upon, in taking these notes. The jury having been instructed otherwise, the
Judgment must be reversed, and the case remanded to the Circuit Court with directions to set aside the verdict and to order a new trial.
NOTES
[1]  S.C. 16 Am. Dec. 46.
[2]  S.C. 27 Am. Dec. 689.
[3]  S.C. 41 Am. Dec. 148.
[4]  S.C. 31 Am. Dec. 163.
[5]  S.C. 39 Am. Dec. 750.
[6]  S.C. 10 Am. Dec. 88.
