Goodel v. Baker — 8 Cow. 286

Majority

p. 285

Goodel against Baker.

Headnote

Trespass de bonis asportatis, tried at the Lewis circuit, December 14th, 1826, before Williams, C. Judge,

The defendant distrained and sold the plaintiff’s horses for a tax, assuming to be a collector of the town of Watson ™ L6"^8 county. He did this under a regular warrant;

and the only material question at the trial was, whether he was a collector of that town for 1825. On this head, the defendant proved that he was the reputed collector of that year. The plaintiff then proved, that at the town meeting of 1824, the freeholders and inhabitants of Watson adjourned to the house of Daniel Whedon in that town, as the place of holding their town meeting of 1825, which was fixed by a statute on the 1st Tuesday of March; but in all other respects was subject to the regulations of the act relative to the duties and privileges of towns. (2 R L. 125.) Tt appeared that no time of day for the future meeting was fixed in the resolution to adjourn. The usual time of opening the meetings in that town, had been from 10 to 11 A. M. But on the occasion "::"in question, the meeting was opened at half past 9 A. M., many of the electors having assembled, and three justices of the town with the clerk, presiding. A resolution was immediately passed, after so opening, to adjourn to the house of Thomas Paffer, about 20 miles distant, where the meeting again convened, and the defendant, with the other town officers, were chosen, two of the justices presiding. The reason alleged for the adjournment was, that Whedon’s house was uninhabited, and his barn empty, the weather being inclement, and accommodations not good, and Paffer’s was the next convenient place. On the day of the adjournment, several of the voters who arrived at Whedon’s after the adjournment, with others who remained, proceeded on their part to elect a set of town officers, a moderator chosen for the purpose presiding, after the only justice present had refused to preside. The defendant had acted as collector for the town, being recognized as such by the county board of supervisors, and their warrant directed to him.

A town meet-op!ne™for bm siness at any sunrise and

so opened, the meeting may be continued to the second day, and it may be adjourned, immediately on opening the first day, to the next day and to a different place, in the discretion of the meeting, provided they deem this necessary for their accommodation.

Of this necessity, the meeting are the exclusive judges.

The judge charged the jury, that the meeting had no right to adjourn except in cases of necessity; that the exercise of the power of adjournment was inquirable into; and if, it appeared to have been without reasonable cause, and, with a view to oppress or defraud, the adjournment would be illegal. Upon this matter he left the facts to the jury; and charged, that should they not find the meeting

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to have been justified in adjourning, upon the principles which he stated to them, they should consider the defendant as a trespasser, and find for the plaintiff. The defendant excepted. Verdict for the plaintiff.

• A motion was now made, in behalf of the defendant, for a new trial.

H. Bleeclcer, for the motion.

It was sufficient for the defendant to show that he was collector de facto ; and an inquiry into the legality of the town meeting was improper. ( 7 John. 554 ; 3 id. 431; 4 T. R. 366.) This can only be done on an information in nature of a quo warranto. *It is so of every public officer. The rule has been adopted to prevent a failure of justice.

The meeting at Whedon’s was lawful. A town meeting may be held at any time between sunrise and sunset; and continued for two days. (2 R. L. 127, s. 4.)

The right and power to adjourn was incident to, and fully vested in the meeting. The legal voters of the town were the sole judges of the propriety or expediency of adjourning.

S. Beardsley, contra.

The authorities cited go no farther than saying, that where an appointment emanates from proper authority, it cannot be questioned. They allow that the merely acting as an officer, or being such by public reputation, is no more than prima facie evidence; and may be met and repelled by the truth. The question is one of jurisdiction. ( 8 John. 72 ; 1 Cain. 92 .)

There was no necessity for adjourning. So the jury have decided; and the verdict should conclude. They have pronounced the motives of the adjournment to have been fraudulent.

It is denied that the meeting, if legal, had any power to adjourn, except in case of necessity. The statute cited gives power to continue the meeting for two days; but not a word is said of adjourning to another place. This meeting is created by statute with special and and limited powers; and cannot transcend those which are expressly given.

The manner of holding town meetings is pointed out by the act relative to the duties and privileges of towns. (2 R. L„ 125.) The officers who shall preside are designated; these are the justices of the peace, and, in théir default, the town clerk; and if neither attend, then a person is to be chosen for the purpose. The 4th section of the act declares, that the town meeting shall not be held more than two days, implying that it may be held that length of time if necessary. It shall be open only between sunrise and sunset; and at *such place as shall be appointed by the voters from time to time.

In this case, about the usual number of electors met at the place appointed the year before; and at half-past 9 A. M., about an hour earlier than usual, the justices and town clerk were present, and opened the meeting. A motion was made to adjourn to the next day, and at another place, which carried. The reasons for this measure were the inclemency of the weather, and the want of accommodations, the house being uninhabited.

If this adjournment was lawful, then the election of the defendant was so ; and his justification complete.

I think the electors had a right to adjourn. The 4th section gives them the general power of appointing the place. They were the best judges of the necessity. There could be no injury to the rights of any. All the electors might attend the next day. The judge, I think, erred in referring the question of legality to the jury. The people had the right to adjourn; and they are better judges of the occasion upon which it is discreet to exercise that right than a jury. I think the former are the exclusive judges. If they were indiscreet, that does not make the act unlawful, and all the officers either wrong doers or trespassers, according to the nature of their official acts. I think the judge should have told the jury that the adjournment was lawful; and that, of course, what was subsequently done on the same day, without re-considering the question of adjournment, was irregular, and of no force; that the meeting opened on the second day was a lawful meeting; and

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the officers then elected the proper town officers. A new trial should, therefore, be granted,^[1]

New trial granted.

[1] [1] See Waterman’s Treatise, p. 600; N. Y. Dig., vol. 4, tit. Towns and Town Meetings.