State Treasurer v. Luther Cross & Ira Day, 9 Vt. 289

The opinion of the court was delivered by Williams, Ch. J. This is an action brought to recover the sum, subscribed by the defendants, towards building a state-house in Montpelier. The subscription paper contained a contract between the state and the individual subscribers, and, if liable to none of the objections, which have been urged, must be enforced. Here were parties in esse, capable of contracting.

If the subscription was made before the passing of the act of the legislature in 1832, it was in the nature of a proposition to the state, that the several subscribers would pay the several sums annexed to their names, if the state house-should be erected in Montpelier. If made after the passing of the act, it may be considered as accepting the proposition, emanating from the legislature, in the providing clause of the first

section of the act, and providing the funds for that purpose. In either event, when the terms of the act were complied with, the contract between the state and the subscribers was mutual and equally binding. From the decision of the court in the case of the University of Vermont v. Buell, 2 Vt. Rep. 48, it appears that such contracts are not void, for want of a consideration; and it is to be observed that all the cases from Massachusetts, which the defendants have read, were before the court on the hearing of the case against Buell.

Of the propriety of' a contract of this kind, between the state and individuals, it does not become us either to inquire, or express an opinion. The doings of the legislature, when not liable to constitutional objections, are to be respected by the other branches of the government, and their wisdom or propriety are not to be questioned by a co-ordinate branch. The propriety of any particular location of public buildings may depend, in some measure, upon the sum proposed to be given by the citizens of any place.

The public interest obviously requires that such location should be made with a view to all the circumstances, and the greater or less burthen to the whole State would be an important circumstance to be taken into consideration, in determining between several places, in other respects equally convenient.

The increased value of the property, in the vicinity of publjcl buildings, would seem to require that those, who are benefited,J should contribute some part of this increase, for the purpose of erecting them, rather than that the whole advantage should accrue to them, and the expense be wholly borne by the citizens generally. We can see no foundation for the objection made to this subscription, on the ground of public policy or propriety. That the action may be brought in the name of the Treasurer, appears from the 18th and 19th

section of the statute constituting the treasury department. It is a suit for money due on simple contract, and, by that statute, may be brought either in the name of the people of the State, or in the name of the treasurer. jt on]y rema;ns to consider the defence relied on'by the defendants; and we are of opinion, that it cannot avail them, either that the committee of the subscribers paid to the State the whole sum of fifteen thousand dollars, which they had secured, or that the sum, collected by the committee of the other subscribers, was sufficient to repay the sum by them actually paid over.

The payment made by the committee was not a payment made by the individual subscribers. The claims of the State may have been satisfied by the payment of the bond, but the subscription was, both before and after that payment, held by the committee, as in trust for the benefit of the signers of the bond. The cases are numerous, w'here a debt or claim has been paid to the creditors, and the securities kept alive for the benefit of others interested, and suits have been maintained on those securities.

If a judgment is rendered against a sheriff for an escape, the judgment against the debtor is frequently, by order of court, assigned to the sheriff. Oliver v. Chamberlain, D. Chip. Rep. 41. The principle w'as recognized in the case of Allen v. Holden, 9 Mass. Rep. 133. Further, from the nature of the subscription it is very apparent, that the delendants could not resist the action, on the ground that the committee had already collected of the subscribers the w'hole sum, for which the bond w'as executed.

Each subscriber agreed to pay a definite sum, and if the aggregate exceeded the amount required, the subscriptions should abate,pro rata, and no one subscriber could have the whole benefit of the excess. The agreement among the subscribers, to this effect, was only what the law would -have enforced without such agreement, in case the subscriptions exceeded the amount required.

The result is, there is no legal objection to the right of the plaintiff to recover of the defendants on the subscription paper, after deducting their proportion of the excess of the available subscriptions, either arising on the contract itself, or on the facts given in evidence by the defendants; and the judgment of the county court, which was conformable to this view, must be affirmed.