Wilde J.
afterwards drew up the opinion of the Court. This is an action of debt for a penalty brought upon the statute of 1797, c. 69, by the treasurer of the town of Ware-ham, as well for himself, as for the several towns of Wareham, Carver and Rochester. At the trial several preliminary questions were raised on objections made to the regularity of the proceedings of these towns under the statute, which, though formal and technical, must prevail, as this is a penal action, if the proceedings were not strictly regular.
[316]*316It was in the first place objected, that the meeting of the town of Wareham, at which the plaintiff was chosen treasurer, was not legally warned, the return of the officer warning the meeting being defective, in not showing how the inhabitants were notified and warned. Although such an objection would hold ■ good against the return of a sheriff on a common writ or precept, it does not follow that the same strictness is to be observed in the return of warrants for warning town meetings. Too much strictness on subjects of this nature, as Chief Justice Parker remarks in Welles et al. v. Battelle et al., 11 Mass. R. 481, would throw the whole body politic into confusion. We think, therefore, the return is well' enough, and that returns in this form are usual, and have been uniformly held good. Saxton v. Nimms, 14 Mass. R. 315 ; Thayer v. Stearns, 1 Pick. 109.
It was in the next place objected, that there was no sufficient evidence that the plaintiff was sworn. But it is expressly certified by the town clerk that he was, and that he took his oath before John Fearing esquire. This appears by the town record, and it is competent and abundantly sufficient evidence to establish the fact, that the plaintiff was duly sworn into office. The oath was administered by the justice, in open town meeting, in presence of the town clerk, and it was his duty to make a record of this as well as of other doings in the meeting.
So it was competent for him to make a record of his own election and qualification, from the necessity of the case, and the record or a copy is competent evidence.
In the course of the trial several exceptions were taken to the due elections and qualifications of the committees required to be chosen by the statute. One of these committees, as designated in the record, was chosen by the town of Wareham as a herring committee, or “ committee of herrings at the west end of the town.” It is objected that this does not appear to be such a committee as was contemplated by the statute, and that it ought to appear that they were chosen as a committee for the preservation of alewives. But it was admitted, that at Wareham and in its vicinity, the names [317]*317“ herrings ” and cc alewives ” are used indiscriminately, and .hat the Weweantit river, which is frequented by that species of fish, lies in the west end of the town of Wareham, and that there is no other stream in that part of the town which is thus frequented ; and these facts show clearly that the committee was chosen for the purposes contemplated in the statute, and were duly invested with the powers intended to be conferred thereby. They were also duly qualified, as the clerk testifies, and as, for reasons given by him, the minutes of the administering of the oath were never recorded, parol evidence to prove the fact was competent. Bassett v. Marshall, 9 Mass. R. 312.
We think also there is no valid objection to the form of the oath administered. It was substantially in conformity with the requisitions of the statute. No particular form of oath is prescribed.
The objections taken to the election of the committees in the towns of Rochester and Carver, and to the supposed irregularity of the proceedings of those towns, appear to us to have been rightly overruled at the trial, and for the reasons stated in the report.
In Rochester the committee is designated as “ a committee as inspectors of Weweantit river.” The meaning and the object of the choice cannot well be misunderstood, and we think it was properly left to the jury to decide whether this committee was not chosen for the purposes contemplated by the statute.
In the town of Carver the committee chosen are only designated as the herring committee. This, without further proof, would probably be considered too loose and uncertain, as there might be herring committees appointed for other rivers in the town. But this uncertainty or ambiguity might be removed, as it was allowed to be, by parol evidence. It was a latent ambiguity, depending on the fact, that there were other rivers in the town. If there had been no other river or stream in the town, the "description of the committee in the record would be sufficiently certain.
The other objections to the proceedings of these towns need not to be particularly noticed. The reasons for over[318]*318ruling them sufficiently appear in the report of the case, or have been noticed already in considering other objections.
The remaining questions to be considered, relate to the proceedings of the committees of the three towns and the conduct of the defendant as to the obstruction complained of. An objection, however, has been made to the form of the declaration, which was overruled at the trial, and for reasons entirely satisfactory. It is averred in the fourth count, that the committee directed the defendant to open a sluice-way in his dam to the bed of the river, and to keep the same open till the 12th of May. The proof was, that there was no direction given for what length of time the sluice-way should be kept open. And it was contended that this was a material variance. But the penalty sued for is for a breach of the first part of the direction as set out in the declaration, in not opening a sluice-way, and this was a distinct offence. The breach of the other part of the direction would have been another offence ; but no breach of that part of the direction is alleged in the declaration, and the direction in this respect is surplusage, which the plaintiff was not bound to prove. But if a breach of this part of the direction had been alleged, and the plaintiff had claimed two penalties, the objection of variance would not apply. If a plaintiff proves a part of his declaration, and the part proved is sufficient to maintain his action, it is no valid objection, that the whole declaration is not proved. The direction oí the committee, as alleged in the declaration, is divisible, and the breach proved is by the statute a distinct offence, to which a penalty is annexed, and which the plaintiff is well entitled to recover. Nor is it any valid objection to the direction of the committee, that it did not fix the time the sluice-way was to be kept open. There was no necessity that this should be determined in the first instance. That might be well done by a subsequent order. And in other respects, we are of opinion that the direction was sufficiently definite.
The last and most important objection is, that the direction of the committee was unreasonable, with which the defendant was not by law bound to comply ; and the defendant’s [319]*319counsel contend that this was a proper question to be submitted to the consideration of the jury.
Free access — add to your briefcase to read the full text and ask questions with AI
Wilde J.
afterwards drew up the opinion of the Court. This is an action of debt for a penalty brought upon the statute of 1797, c. 69, by the treasurer of the town of Ware-ham, as well for himself, as for the several towns of Wareham, Carver and Rochester. At the trial several preliminary questions were raised on objections made to the regularity of the proceedings of these towns under the statute, which, though formal and technical, must prevail, as this is a penal action, if the proceedings were not strictly regular.
[316]*316It was in the first place objected, that the meeting of the town of Wareham, at which the plaintiff was chosen treasurer, was not legally warned, the return of the officer warning the meeting being defective, in not showing how the inhabitants were notified and warned. Although such an objection would hold ■ good against the return of a sheriff on a common writ or precept, it does not follow that the same strictness is to be observed in the return of warrants for warning town meetings. Too much strictness on subjects of this nature, as Chief Justice Parker remarks in Welles et al. v. Battelle et al., 11 Mass. R. 481, would throw the whole body politic into confusion. We think, therefore, the return is well' enough, and that returns in this form are usual, and have been uniformly held good. Saxton v. Nimms, 14 Mass. R. 315 ; Thayer v. Stearns, 1 Pick. 109.
It was in the next place objected, that there was no sufficient evidence that the plaintiff was sworn. But it is expressly certified by the town clerk that he was, and that he took his oath before John Fearing esquire. This appears by the town record, and it is competent and abundantly sufficient evidence to establish the fact, that the plaintiff was duly sworn into office. The oath was administered by the justice, in open town meeting, in presence of the town clerk, and it was his duty to make a record of this as well as of other doings in the meeting.
So it was competent for him to make a record of his own election and qualification, from the necessity of the case, and the record or a copy is competent evidence.
In the course of the trial several exceptions were taken to the due elections and qualifications of the committees required to be chosen by the statute. One of these committees, as designated in the record, was chosen by the town of Wareham as a herring committee, or “ committee of herrings at the west end of the town.” It is objected that this does not appear to be such a committee as was contemplated by the statute, and that it ought to appear that they were chosen as a committee for the preservation of alewives. But it was admitted, that at Wareham and in its vicinity, the names [317]*317“ herrings ” and cc alewives ” are used indiscriminately, and .hat the Weweantit river, which is frequented by that species of fish, lies in the west end of the town of Wareham, and that there is no other stream in that part of the town which is thus frequented ; and these facts show clearly that the committee was chosen for the purposes contemplated in the statute, and were duly invested with the powers intended to be conferred thereby. They were also duly qualified, as the clerk testifies, and as, for reasons given by him, the minutes of the administering of the oath were never recorded, parol evidence to prove the fact was competent. Bassett v. Marshall, 9 Mass. R. 312.
We think also there is no valid objection to the form of the oath administered. It was substantially in conformity with the requisitions of the statute. No particular form of oath is prescribed.
The objections taken to the election of the committees in the towns of Rochester and Carver, and to the supposed irregularity of the proceedings of those towns, appear to us to have been rightly overruled at the trial, and for the reasons stated in the report.
In Rochester the committee is designated as “ a committee as inspectors of Weweantit river.” The meaning and the object of the choice cannot well be misunderstood, and we think it was properly left to the jury to decide whether this committee was not chosen for the purposes contemplated by the statute.
In the town of Carver the committee chosen are only designated as the herring committee. This, without further proof, would probably be considered too loose and uncertain, as there might be herring committees appointed for other rivers in the town. But this uncertainty or ambiguity might be removed, as it was allowed to be, by parol evidence. It was a latent ambiguity, depending on the fact, that there were other rivers in the town. If there had been no other river or stream in the town, the "description of the committee in the record would be sufficiently certain.
The other objections to the proceedings of these towns need not to be particularly noticed. The reasons for over[318]*318ruling them sufficiently appear in the report of the case, or have been noticed already in considering other objections.
The remaining questions to be considered, relate to the proceedings of the committees of the three towns and the conduct of the defendant as to the obstruction complained of. An objection, however, has been made to the form of the declaration, which was overruled at the trial, and for reasons entirely satisfactory. It is averred in the fourth count, that the committee directed the defendant to open a sluice-way in his dam to the bed of the river, and to keep the same open till the 12th of May. The proof was, that there was no direction given for what length of time the sluice-way should be kept open. And it was contended that this was a material variance. But the penalty sued for is for a breach of the first part of the direction as set out in the declaration, in not opening a sluice-way, and this was a distinct offence. The breach of the other part of the direction would have been another offence ; but no breach of that part of the direction is alleged in the declaration, and the direction in this respect is surplusage, which the plaintiff was not bound to prove. But if a breach of this part of the direction had been alleged, and the plaintiff had claimed two penalties, the objection of variance would not apply. If a plaintiff proves a part of his declaration, and the part proved is sufficient to maintain his action, it is no valid objection, that the whole declaration is not proved. The direction oí the committee, as alleged in the declaration, is divisible, and the breach proved is by the statute a distinct offence, to which a penalty is annexed, and which the plaintiff is well entitled to recover. Nor is it any valid objection to the direction of the committee, that it did not fix the time the sluice-way was to be kept open. There was no necessity that this should be determined in the first instance. That might be well done by a subsequent order. And in other respects, we are of opinion that the direction was sufficiently definite.
The last and most important objection is, that the direction of the committee was unreasonable, with which the defendant was not by law bound to comply ; and the defendant’s [319]*319counsel contend that this was a proper question to be submitted to the consideration of the jury. But as they did not propose to prove at the trial, that the committee acted corruptly, or under sinister or unjustifiable motives, which was disclaimed, and as the committee were invested with discretionary prowers to decide what kind of fishway or passage would be sufficient, the chief justice was of opinion, that this was not an open question proper to be submitted to the jury, and he ruled accordingly, that the defendant was bound by the determination of the committee.
On this point the adjudged cases do not all harmonize, but we think the weight of authority and of reason is in favor of the decision of the chief justice.
In Warne v. Varley, 6 T. R. 443, it was decided, that searchers of leather were not justified in seizing leather, to carry it before triers, although they acted bond fide, and believed the leather was not sufficiently dried; and the reason given is, because the St at. 2 Jac. 1, c. 22, only authorizes them to seize leather of a particular description. This case differs from the present, as the searchers, by the statute, were not authorized to determine what leather was sufficiently dried, and consequently were mere ministerial officers ; and they were likened to custom-house officers, who, before they were protected by statute, were not justified in seizing goods, if it turned out that the goods were not subject to seizure, even though there was a probable cause for seizing them.
The case of Schinotti v. Bumsted et al., 6 T. R. 646, would seem at first sight to be more in point in favor of the defendant. It was there decided, that an action might be maintained against the commissioners of a lottery for not adjudging a prize to the holder of a ticket entitled to receive i'. But that case also was decided on the ground that the commissioners were ministerial officers, although the statute provides, “ that if any contention or dispute shall arise in adjusting the property of the said fortunate ticket, the major part of the said managers and directors agreeing therein shall determine to whom it doth or ought to belong.” Lawrence J. says that the above clause in the statute does not give them (the commissioners or managers) judicial authority to [320]*320decide between contending parties, which of them is entitled to any prize, but merely to decide among themselves in case they are divided in opinion. Whether this is the true construction of the clause in the statute may be doubtful, but it was on that ground that it was decided that the commissioners were ministerial officers.
In Rex v. Young et al., 1 Burr. 556, it was decided, that where a discretionary power was given to justices to grant licenses, and they refused to grant a license to an applicant, no information or action would lie against them, unless some charge of corruption, partiality or other imputation could be proved. Lord Mansfield says, “ that this court had no power or claim, to review the reasons of justices of peace, upon which they form their judgments in granting licenses, by way of appeal from their judgments, or overruling the discretion intrusted to them.”
In Sutton v. Clarke, 6 Taunt. 29, it was held, that a person who, in the exercise of a public function, which he is compelled to execute, acting without malice, and accoiding to his best skill and diligénce, and obtaining the best information he can, does an act which occasions consequential damage to a subject, is not liable to an action for such damage.
These cases, although they do not perfectly agree in some respects, seem to establish this distinction, that where officers act ministerially, their acts and decisions are liable to be reviewed in the higher courts, and they are responsible for any mistakes they may make to the prejudice of. another ; but where they are invested with a discretionary power, and are authorized to decide according to their best skill and judgment, their decisions, if made fairly, are decisive, unless the law allows an appeal from their judgments.
And we are all of opinion, that the committee in this case were invested with a discretionary power to decide on the sufficiency of the passage-way mentioned in the report, and that the reasons of their decision cannot be inquired into in this action. If the legislature had intended otherwise, doubtess piovision would have been made for an appeal to some other tiibunal. But it is apparent from the 5th section, that [321]*321the determination of the committee was intended to be conclusive as to the sufficiency of the sluice-way. It is to be opened “ in such manner as said committee shall direct,” and *he owner or occupier of any dam, neglecting to open a sluice-way accordingly, shall forfeit the penalty sued for. The forfeiture, therefore, has been incurred by the express words of the statute, and the plaintiff is well entitled to recover it in this action.
Eddy and Miller, for the defendant,
cited Chace v. Tucker, 2 Pick. 27 ; Andrews v. Austin, ibid. 528.
Wood and Beal for the plaintiff.
Judgment for plaintiff.
A question was subsequently brought before the Court in relation to the costs.
delivered the opinion of the Court. On the question of costs it has been argued by the plaintiff’s counsel, that he ought to be allowed his costs as well in this Court as in the Court of Common Pleas, although he brought up the case by appeal and is not entitled to recover more than $ 100 for his debt or damages. By the St. 1820, c. 79, § 4, he is not so entitled, but the defendant is entitled to costs since the appeal, unless it shall be certified by this Court that there was reasonable cause for the appeal; and upon the facts agreed we cannot certify that there was any such reasonable cause. The plaintiff, in the court below, not being prepared for trial, moved the court for a continuance, which was granted on terms which his counsel considered unreasonable, and therefore suffered judgment to be rendered against him for want of proof, and thereupon entered an appeal. And if the terms imposed had appeared to us unreasonable, we should consider the course pursued by the plaintiff reasonable, so as to entitle him to a certificate. For although no legal exception can be taken to the opinions and decisions of the Court of Common Pleas in matters depending on the discretionary power vested in that court, yet in deciding the question whether the appeal was reasonable or not, we must take into consideration all the circumstances of the case, and are bound to decide the point according to our own opinion as to the reasonableness of the [322]*322course pursued. But we perceive nothing unreasonable in the terms upon which the motion for a continuance was granted, and therefore the certificate prayed for must be denied. The plaintiff will accordingly be allowed his costs in the Court of Common Pleas only ; and the defendant is to be allowed his costs on the appeal and to have a separate judgment therefor as the statute directs.