Shackford v. Town of Newington

Bellows, J.

The first question is, whether the vote is to be regarded as a vote to raise $340.00 for each volunteer, or only $340.00 in all. The article in the warrant was, to s§e if the town would raise that sum, or any other sum, for each volunteer who might enlist for three years, or during the war : and under that, the vote was "to pay those who have enlisted since the date of the warrant, and those who may enlist, to fill the quota of this town under the late call of the President for volunteers- for three years,- or during the war, the sum of three hundred and forty dollars.”

Standing alone the vote is not very explicit on this point; but in connection with the warrant, we think there can be no doubt of the intention of the town to offer $340.00 for each volunteer. The question before them was, whether they would pay to each volunteer that or any other sum, and the vote to pay that sum to the volunteers must have been intended to pay so much to each, and not so much to all.

This construction also best accords with the nature of the subject, requiring, ,as it does, the payment of the bounty at the time of the enlistment ; whereas, with the other construction, the share of each could not be determined until the enlistments were completed, which might be at an indefinite period. We have, therefore, no difficulty in construing this as a vote to pay $340.00 to each volunteer.

The next question is, whether upon the evidence before us the loan is to be regarded as made for the purpose of paying bounties for future enlistments, or for both past and future enlistments. .

The vote actually was to pay those who had already enlisted since the date of the warrant, and those who might enlist afterwards, but the note recites a vote to pay each volunteer for three years $340.00, and to authorize the selectmen to hire money for that purpose ; and states also that the plaintiff had advanced the sum of $3100.00 for the purposes of said vote.

The recital, then, is in general terms, and broad enough to include all who enlisted, whether before or after the passage of the vote, and *420 even before the date of the warrant; and yet, as the vote as actually passed, did not embrace those who enlisted before the date of the warrant, it could not properly be claimed that the money, or any part of it, was loaned to pay such volunteers.

If, then, the part of the vote giving bounties to those who enlisted after the date of the warrant, and before the vote passed, was invalid, the question is, whether the other part of the vote is valid, and if so, whether it is to be presumed that the loan was to pay bounties for future enlistments alone.

In the case of Crowell v. Hopkinton, 45 N. H, 9, it was decided that- a vote to pay for past and future enlistments was valid as to, future enlistments, even if invalid as to those already made, and that is decisive of the question here.

Upon the other point we are of the opinion, that, as the case stands before us, it is to be presumed that the selectmen of Newington acted rightly, and borrowed the money fora legal purpose alone, which would be to pay for future enlistments, provided the other part of the vote was invalid. If that part was invalid, then the vote would stand only for future enlistments, and in accordance with well established principles the officers of the town would be presumed to have acted legally, and have borrowed the money for a lawful purpose alone, unless something is shown to rebut that presumption. If the invalid part of the vote had been wholly omitted, there could have been no presumption (that the money was borrowed for an unlawful purpose, although the language of the recital is broad enough to include all volunteers, and so it must be, we think, if the part relating to past enlistments is invalid. If it had been expressly stated in the recital that the money was advanced to pay past, as well as future enlistments, the presumption that the officers had acted rightly would have been overcome, but as there is nothing in the terms used to designate what class of volunteers was to be provided for, the presumption that the money was borrowed for a rightful purpose must apply.

The maxim omnia, presumuntur rite esse acta is well established, and its application to acts of public officers is recognized in numerous adjudged cases in England and America. Broom’s Legal Maxims, *729, and cases cited; Powell Clark v. Milburn Clark, 3 Wilson’s Rep. 355; Rex v. Hawkins, 10 East 216.

In these two cases, persons were elected to office which required as qualifications certain observances, in the one case that the incumbent should sign the thirty-nine articles in the person of the Bishop of Durham, and publicly read and assent to them; and in the other case, that he should have partaken of the sacrament .within a year ; and it was held that until the contrary was proved, the law would presume that these things had been duly observed. See, also, Powell v. Sonnett, 3 Bingh. 381; 13 Eng. C. L. 15; Mark v. Butler, 1 Roll. Rep. 83; Bull. N. P. 298; Matthews on Presump. Evi. 26 to 30, and note on p. 27.

In Dollarhide v. Muscatine County, 1 Iowa 158 , it is laid down that it will be presumed that a person in authority has done his duty *421 until the contrary appears. So is Wray v. Ho-ya-pa-nubby, 10 S. & M. 442 , where it was held that the presumption applied to most acts of an official or ministerial character.

In Hartwell v. Root, 19 Johns. Rep. 346, it was held that it being the duty of a sheriff to levy an execution upon certain property at a certain time, which property he afterwards sold on the execution, it should be presumed that he made such levy. Much the same is Boyd v. Buckingham, 10 Humph. 434 ; 12 U. S. Dig. 276, sec. 220.

The ordinary presumption that an officer has done his duty should not be allowed to sustain a vital jurisdictional fact, but when the main fact is made out by proof, and the question is one of time merely, this presumption may be allowed to govern. Sheldon v. Wright, 7 Barb. Sup. Ct. Rep. 39.

If an'officer serve a writ, of replevin, the presumption is that he took the bond required by law, though it be not stated in the return. Shorey v. Hussey, 32 Maine 579 .

So, where there is a record of the choice of officers at a town meeting, it will be presumed that they were chosen by ballot as the law requires. Mussey v. White & al., 3 Greenl. 298.

The acts of a public officer having competent authority may be presumed to be in conformity with law, and as affording proof of the facts on which such action was founded. Houston v. Perry, 3 Texas 390 .

So, where the acts of a State officer would be a violation of dutyunless certain terms or conditions had first been performed by an individual, such performance will prima facie be presumed as between the individual and the State. Titus v. Kimbro, 8 Texas 210 .

All acts of public officers, especially of judicial tribunals acting within their jurisdiction, are presumed to be done rightly until the contrary is proved. Dyson v. The State, 26 Miss. (4 Cush.) 362. Commissioners appointed to sell land returned a bond to which an obligor’s name was affixed by another; in the absence of proof to the contrary, the authority so to sign it will be presumed to have been shown to the commissioners. Nebbett v. Cunningham, 27 Miss. (5 Cush.) 292. See also, 2 Cow. Phillips’ Evi. 296-7, and cases collected.

In favor of the acts of public officers, the law will presume all to have been rightly done unless the circumstances of the case overturn the presumption. Ward v. Barrows, 2 Ohio N. S. 241.

The report of the doings of public officers in appraising, granting and surveying land, though it does not state all they were required to do, is prima facie evidence against a stranger, that all was rightly done. Allegheny v. Nelson, 25 Penn. St. Rep. 332.

So, in case of a return of a sale by’a sheriff, that he advertised the sale as the law directs, it will be presumed that he advertised it at the place of sale. Drake v. Mooney, 31 Vt. 617 . So, it will be presumed that a service of a writ was wiihin an officer’s precinct, though it is not stated in his return. Richardson v. Smith, 1 Allen 541 .

The presumption is, that the register of the land office, as a public officer, did his duty in the performance of any particular act; and he *422 who impeaches it as illegal, must prove the allegation. Lea v. Polk County Copper Co., 21 How. U. S. Rep. 493.

A note taken by a public officer intrusted with funds, some of which lie has power to loan, and some of which he cannot loan lawfully, will be presumed to have been given for such as he could lawfully loan. Murray v. Smith , 28 Miss. (6 Cush.) 31.

In the case before us, the selectmen might lawfully borrow money to pay for future enlistments, but could not lawfully borrow to pay for enlistments before the date of the warrant, and perhaps not for those made between that time and the passage of the vote; and we think it a fair application of the maxim as deduced from the decided cases to, presume, especially against the town for whom the officers acted, that it was borrowed for the lawful purpose, until the contrary is shown, the same as in cases where the return of the sheriff fixed no time when service was made, or stated no place; and yet though the returns were broad enough for any time or place, it is presumed that the acts were done at the times and places required by the officer’s duty. So, where the State treasurer had two funds, one only of which he could lawfully loan, it was presumed that the note given him for money loaned was for that which he was authorized to loan, and not the other.

Upon these principles and views, we are of the opinion that the burden is upon the defendant to prove that its officers acted unlawfully and borrowed the money for an unlawful purpose. It is true, that the vote as passed, in form, may have .authorized them to do so; and yet, although this circumstance might make less evidence sufficient to rebut the presumption, the presumption must stand unless it is overcome by proof.

It may, however, admit of very serious doubts whether this presumption can be rebutted at all'by showing that the money, in part, or all, was applied to a purpose not authorized by law. If the money was loaned in good faith, and for a lawful purpose, so far as the plaintiff was informed or concerned, it is by no means clear that he could beoaffected by a subsequent misapplication of it.

The selectmen had power to borrow money to pay for future enlistments, and had they represented the loan to be for that purpose, or had the course of the negotiations indicated that object, it could hardly be contended that the subsequent application of part of the money to bounties for past enlistments, could affect the plaintiff’s claim.

If the money was loaned to be applied to past enlistments, and this was understood by the lender when he made the loan, a different case would be presented; but if not so understood, it would clearly be unjust to affect him by a subsequent misapplication of the money.

These views make it unnecessary to consider the validity of that part of the vote raising money to pay for enlistments between the date of the warrant and the passage of the vote. The conclusions we have reached are upon the assumption that, it was not valid.

It is urged that the legislature had no power under the constitution to authorize towns to raise money to pay bounties to volunteers; but in the *423 case of Crowell v. Hopkinton, before cited, it was held that such a vote by a town was valid, and we .are satisfied with that opinion.

"We think, also, that the evidence offered by the defendant, that individuals at the town meeting proclaimed that the vote was not authorized by any article in the warrant, and was for $340 only, was not admissible; nor was it material that plaintiff had notice of this objection, and the construction put upon the vote. The evidence could be nothing-more than an attempt to control the validity of the vote, and its construction, by the opinion of an individual.

With these views there must be Judgment on the verdict.