Timothy H. Chamberlain & al. vs. The Inhabitants of Dover, 13 Me. 466

After a continuance, nisi, the opinion of the Court was drawn up by Weston C. J. — It was the duty of the town clerk to record the doings and proceedings of the town. And if through inad-vertency or misapprehension, the record has been defectively made, it is competent for him while in office to complete it, by amending it according to the truth. He acts at his peril, and will be liable, if he falsifies or mistakes what it is his duty to record. Welles et als. v. Battelle et als. 11 Mass. R. 477, is a case exactly in point.

The town clerk testified, that the record is true as amended which, at least until impeached, must have been presumed without his testimony. The principal question presented to our consideration is, whether the town are bound and concluded, by the proceedings of the meeting, held on the fifteenth of January, 1834. In all measures, in regard to which towns are authorised to act, at all legal meetings the doings of the majority present bind, not only the minority, but all who are absent.

But the exercise of this power is subject to certain regulations, intended to afford full and fair opportunity to every citizen to be present, and to take

part in any business, by which the interest of the tovrn may be affected. Thus public notice is required to be given in a certain, manner, and for a certain number of days, of the time and place of meeting, and of the subjects to be acted upon. When a meeting is fairly organized, it doubtless possesses the incidental power of adjournment to a future time. We do not say that they may not have the right to adjourn to another place. But there should be limitations to the exercise of such discretion.

It could not be tolerated that a few persons, by concert or otherwise, should be permitted to attend at the precise time appointed, and forthwith adjourn from a central to an extreme part of the town. In the case before us, the meeting called was never held at the place appointed. It was to be at the school house, which must be understood to mean within its walls.

If the adjournment from the usual place of holding town meetings to a distant point on one side of the town, could under any circumstances be proper-, about which we give no opinion, it was a measure, which could be taken only at a regular meeting, to the validity of which place, as well as time, is undoubtedly essential. This case is as strong, as any one that could be selected, to illustrate the necessity of maintaining this principle. The meeting was appointed at one. In half an hour from that time, half a dozen persons, one of whom is the town clerk, appear in the street.

The town clerk reads the warrant; and they there vote forthwith to appear at a distant place, to which they immediately repair. Other citizens attend at the place first appointed, with a view to take

part in the business, and finding no trace of a meeting, return home. They had no means of knowing, that it was then going on at Patten’s store. Wo cannot but regard it in the highest degree dangerous to the rights of towns to hold them concluded by such a course of proceeding. It is most manifest, that the citizens of the town were thus deprived of the privilege of being present at the transaction of important business, affecting their interests. A measure was taken, which a large majority disapproved. This is demonstrated, by the proceedings of a subsequent meeting.

Why should the small number at Patten’s store bind the town ? The only reason tlmt could be assigned is, that every citizen had notice, and might have attended there, if he had been so disposed. But this is not true in fact. There is no reason to believe, that one tenth part of the citizens ever heard of the meeting at the store, until it was over. We are aware of no legal reason, why the town should not be permitted to sustain their objections, by the testimony they intro-* duced. It does not contradict the record.

From that it appears that no mooting was held at the place appointed, but that an irregular one was held at a different place ; and the testimony objected to shows, what otherwise might have been presumed, that many citizens were thereby deprived of the opportunity of being present, and taking

part in their own concerns. It is contended, that the validity of the proceedings at Patten’s store, is recognized by the regular meeting in February, when the town voted to reconsider certain votes taken and recorded in January. But wo are of opinion, that no such inference can fairly be drawn from that vote. It was the mode they adopted of expressing their disapprobation of the course previously pursued. To hold that the former doings were thereby ratified, would be to deduce a meaning from their vote, in direct opposition to their intentions. The previous doings did not bind the town.

It should have been one of the articles in the warrant for a regular meeting, to see whether the town would ratify those doings, and an affirmative vote had thereon, before they could be confirmed, so as to be binding on the town. Stat. of 1821, ch. 114, regulating town meetings, <§> 5. It is urged, that prior to the amendment of the record, the plaintiffs had reason to believe that the committee of the town were clothed with sufficient authority, and that being in no fault, the town should be precluded from denying their authority.

If the clerk makes an erroneous record, the town are not bound by it, merely because others confide in its correctness. They are notwithstanding entitled to have it set right. Otherwise they would be concluded, not only by their own votes, but by whatever by design or accident, might be improperly entered by the clerk, and that without any chance of relief by amendment. The plaintiffs made their contract with certain persons, assuniing to be agents of the town. Their remedy is against the agents, if they acted without authority.

The opinion of the Court is, that the action is not supported; and the verdict is accordingly set aside. Plaintiffs nonsuit.