Bell, J.
The office of prudential committee became vacant by the removal of the incumbent from town, in December, 1851. Barre v. Greenwich, 1 Pick. 129, cited in Rumsey v. Campton, 10 N. H. Rep. 567. The plaintiff was appointed by the selectmen, and took the oath of office, and his appointment and oath were properly recorded, before the 23d of April, 1852, and no objections are suggested to the regularity of these proceedings. As prudential committee he was authorized “ to make such occasional repairs in the school house and furniture as may be necessary, not exceeding in amount five per cent, of the school money of the district.” Rev. Stat. ch. 72, § 10.
[309]*309It is not suggested that the repairs were not occasional, within the meaning of the statute, nor that they were not proper and necessary, if the plaintiff was the prudential committee, and entitled to the care and control of the house. But the defence rests on the ground that the plaintiff being appointed to fill a vacancy, held his office not for a year, or for the residue of the year, as he would do if chosen to the office, but only “ until a new officer was chosen and qualified and that he was in fact superseded and removed from office May 5, 1852, some months before these repairs were made, by the election and qualification of another person to the office.
If this objection is well founded it is fatal to the plaintiff’s action, but it is said the election of Johnson was void, because the selectmen had no authority to call the meeting at which he was chosen.
The statute, after providing for the calling of annual and special meetings of school districts, Laws of 1845, ch. 222, §§ 1, 2, (Comp. Stat. 169,) provides, section three, that “if the prudential committee shall neglect to warn any such annual meeting, by issuing a warrant and posting up an attested copy thereof, as aforesaid, prior to the fifteenth day of March, or shall neglect for the space of ten days after application made in writing, by three or more voters of the district, to call any such special meeting, the selectmen of the town, upon a like application, shall call such annual or special meeting, by issuing their warrant, and causing a copy thereof, attested by them, to be posted up or served in the manner before subscribed.”
The power of the selectmen to call any meeting of a district rests upon this statute, and upon the neglect of the prudential committee in the cases there specified. In this case there was no neglect of duty in March, for there was then no committee ; and as the idea of neglect implies a duty, there was no person who then owed any duty. No application appears ever to have been made to the plaintiff to warn [310]*310any meeting, and he was under no obligation of duty to warn any special meeting until application was made to him. The selectmen, of course, assumed to act in a case where the statute gave them no authority. And the warrant, and all the proceedings of the meeting held under it, were consequently void. And the plaintiff was not legally either superseded or removed.
It is, then, contended that the plaintiff had resigned the office of prudential committee, by his conduct at the meeting called by the selectmen, where, upon being chosen prudential committee, he refused to take the oath, and he made no objection to the election of Johnson as committee, nor interfered with his acting as such during the summer. Neither of these things constitute a resignation. At the meeting, he claimed that he was the prudential committee, and had already been sworn, and this cannot reasonably be construed as a surrender of the office. We do not perceive that there was any such call upon him to protest against an unauthorized claim of another committee, or his unauthorized action as such, as to justify the inference that he gave up the office. It is not, we think, consistent with -sound policy to give any countenance to implied resignations. The law imposes certain duties on these committees, and subjects them to penalties for neglect of them. These penalties would be entirely nugatory, if the same negligence which subjects the party to these penalties could be construed into a resignation of the office.
The third objection to the plaintiff’s recovery, in this case, is, that the occasional repairs, authorized to be made by the prudential committee, are to be made from the school money assigned to the district by the selectmen, and by law payable to the prudential committee; and that the committee have no power to make such repairs upon the general credit of the district, and claim payment of them.
The provision in relation to such repairs was introduced during the passage of the Revised Statutes, and no light [311]*311can be drawn from any prior legislation. In terms, it is not said from what fund the money is to be taken, but we are inclined to the opinion that the school money assigned to the district is the only fund to which the committee can resort to defray the expense of repairs.
Taxes voted by the district for repairs of the school house, are evidently designed to be expended by committees specially chosen for that purpose. Rev. Stat. ch. 71, § 1. The prudential committee, as such, has no power to interfere with the expenditure, and it has been decided that the power of the building committee is limited to the expenditure of the money raised by the district. They have no power to expend money or incur debts, on the credit of the district, beyond that amount.
There is no provision of any of the statutes which authorizes, in terms, a district to raise money for any other purpose than the building and repairing of school houses; and one cannot avoid the conclusion, on reading the statutes, that the meetings of the district to raise money for repairs, and the assessment of taxes for that purpose, was expected to be occasional and infrequent. The liability to small expenses for slight repairs of the school house, furniture, and the like, must' be of frequent, perhaps annual occurrence. If it had been in the contemplation of the Legislature that the district were liable to contract debts, and to be involved in lawsuits, they could hardly have failed to make provision for such a case.
The school money, required by the general law to be assessed by the selectmen every year, and to be apportioned annually and assigned to the several districts, seems to us to be the fund from which all the ordinary expenses of the schools are to be defrayed. It is a fund required to be paid over to the prudential committee, annually, for this purpose. The other expenses of the schools are to be paid from this fund, and, we think, the expense of occasional slight repairs must be so. This seems to us evident from the third sec[312]*312tion of chapter 72 of the Revised Statutes, which provides that “ the school tax, when collected, shall be appropriated to the sole purpose of keeping an English school, or schools, within such town, for teaching reading, writing, English grammar,” &c., “ including the purchase of necessary fuel for the school and occasional repairs, as specified in this title.” See Rev. Stat. ch. 72, § 10, before cited.
Assuming the correctness of this position, the claim of the prudential committee, for money expended for repairs, stands on the same ground as that for money expended for instructor’s wages or for fuel. As to the latter, the question was decided in Estes v. School District, 33 Maine Rep.
Free access — add to your briefcase to read the full text and ask questions with AI
Bell, J.
The office of prudential committee became vacant by the removal of the incumbent from town, in December, 1851. Barre v. Greenwich, 1 Pick. 129, cited in Rumsey v. Campton, 10 N. H. Rep. 567. The plaintiff was appointed by the selectmen, and took the oath of office, and his appointment and oath were properly recorded, before the 23d of April, 1852, and no objections are suggested to the regularity of these proceedings. As prudential committee he was authorized “ to make such occasional repairs in the school house and furniture as may be necessary, not exceeding in amount five per cent, of the school money of the district.” Rev. Stat. ch. 72, § 10.
[309]*309It is not suggested that the repairs were not occasional, within the meaning of the statute, nor that they were not proper and necessary, if the plaintiff was the prudential committee, and entitled to the care and control of the house. But the defence rests on the ground that the plaintiff being appointed to fill a vacancy, held his office not for a year, or for the residue of the year, as he would do if chosen to the office, but only “ until a new officer was chosen and qualified and that he was in fact superseded and removed from office May 5, 1852, some months before these repairs were made, by the election and qualification of another person to the office.
If this objection is well founded it is fatal to the plaintiff’s action, but it is said the election of Johnson was void, because the selectmen had no authority to call the meeting at which he was chosen.
The statute, after providing for the calling of annual and special meetings of school districts, Laws of 1845, ch. 222, §§ 1, 2, (Comp. Stat. 169,) provides, section three, that “if the prudential committee shall neglect to warn any such annual meeting, by issuing a warrant and posting up an attested copy thereof, as aforesaid, prior to the fifteenth day of March, or shall neglect for the space of ten days after application made in writing, by three or more voters of the district, to call any such special meeting, the selectmen of the town, upon a like application, shall call such annual or special meeting, by issuing their warrant, and causing a copy thereof, attested by them, to be posted up or served in the manner before subscribed.”
The power of the selectmen to call any meeting of a district rests upon this statute, and upon the neglect of the prudential committee in the cases there specified. In this case there was no neglect of duty in March, for there was then no committee ; and as the idea of neglect implies a duty, there was no person who then owed any duty. No application appears ever to have been made to the plaintiff to warn [310]*310any meeting, and he was under no obligation of duty to warn any special meeting until application was made to him. The selectmen, of course, assumed to act in a case where the statute gave them no authority. And the warrant, and all the proceedings of the meeting held under it, were consequently void. And the plaintiff was not legally either superseded or removed.
It is, then, contended that the plaintiff had resigned the office of prudential committee, by his conduct at the meeting called by the selectmen, where, upon being chosen prudential committee, he refused to take the oath, and he made no objection to the election of Johnson as committee, nor interfered with his acting as such during the summer. Neither of these things constitute a resignation. At the meeting, he claimed that he was the prudential committee, and had already been sworn, and this cannot reasonably be construed as a surrender of the office. We do not perceive that there was any such call upon him to protest against an unauthorized claim of another committee, or his unauthorized action as such, as to justify the inference that he gave up the office. It is not, we think, consistent with -sound policy to give any countenance to implied resignations. The law imposes certain duties on these committees, and subjects them to penalties for neglect of them. These penalties would be entirely nugatory, if the same negligence which subjects the party to these penalties could be construed into a resignation of the office.
The third objection to the plaintiff’s recovery, in this case, is, that the occasional repairs, authorized to be made by the prudential committee, are to be made from the school money assigned to the district by the selectmen, and by law payable to the prudential committee; and that the committee have no power to make such repairs upon the general credit of the district, and claim payment of them.
The provision in relation to such repairs was introduced during the passage of the Revised Statutes, and no light [311]*311can be drawn from any prior legislation. In terms, it is not said from what fund the money is to be taken, but we are inclined to the opinion that the school money assigned to the district is the only fund to which the committee can resort to defray the expense of repairs.
Taxes voted by the district for repairs of the school house, are evidently designed to be expended by committees specially chosen for that purpose. Rev. Stat. ch. 71, § 1. The prudential committee, as such, has no power to interfere with the expenditure, and it has been decided that the power of the building committee is limited to the expenditure of the money raised by the district. They have no power to expend money or incur debts, on the credit of the district, beyond that amount.
There is no provision of any of the statutes which authorizes, in terms, a district to raise money for any other purpose than the building and repairing of school houses; and one cannot avoid the conclusion, on reading the statutes, that the meetings of the district to raise money for repairs, and the assessment of taxes for that purpose, was expected to be occasional and infrequent. The liability to small expenses for slight repairs of the school house, furniture, and the like, must' be of frequent, perhaps annual occurrence. If it had been in the contemplation of the Legislature that the district were liable to contract debts, and to be involved in lawsuits, they could hardly have failed to make provision for such a case.
The school money, required by the general law to be assessed by the selectmen every year, and to be apportioned annually and assigned to the several districts, seems to us to be the fund from which all the ordinary expenses of the schools are to be defrayed. It is a fund required to be paid over to the prudential committee, annually, for this purpose. The other expenses of the schools are to be paid from this fund, and, we think, the expense of occasional slight repairs must be so. This seems to us evident from the third sec[312]*312tion of chapter 72 of the Revised Statutes, which provides that “ the school tax, when collected, shall be appropriated to the sole purpose of keeping an English school, or schools, within such town, for teaching reading, writing, English grammar,” &c., “ including the purchase of necessary fuel for the school and occasional repairs, as specified in this title.” See Rev. Stat. ch. 72, § 10, before cited.
Assuming the correctness of this position, the claim of the prudential committee, for money expended for repairs, stands on the same ground as that for money expended for instructor’s wages or for fuel. As to the latter, the question was decided in Estes v. School District, 33 Maine Rep. (3 Red.) 170, where it was held, under statute provisions similar to ours, that no authority is conferred on school districts to raise money for the purpose of providing fuel, or to contract for the purchase of it, and no action could be maintained against them for the price of fuel furnished by order of the school agent. Perhaps, under our law, the district might be bound to the party with whom such a contract was made, but the principle would apply to the claim of the committee against the district.
We think these payments cannot be made by the committee upon the credit of the district, but must be made upon the credit of the school money apportioned to the district. This money must be raised, and of course paid by the district, as a part of the town at all events, whatever may be the action of the district committee. If the committee may make these payments on the credit of the district, and maintain their action against the district for the recovery of them, it is not seen how the district can avoid being subjected, at the pleasure of the committee, to a double tax. They have no means to avail themselves of the tax assessed for the support of schools, to reimburse themselves the money they have paid on the execution in favor of the prudential committee, and no means to compel the committee to apply the money to this purpose. He is [313]*313subjected to a heavy penalty for not applying it to other purposes specified by the law. Rev. Stat. ch. 72, § 6.
The statute provides a remedy for the committee for the recovery of the school money assigned to his district, by an action of debt in the name of the district, against the selectmen who neglect to assign it or pay it over. Rev. Stat. ch. 72, § 5. This action seems to us the appropriate remedy for the committee to obtain possession of the money applicable by law to the expenditures to be made by him, including occasional repairs. Though the suit is to be in the name of the district, and the money recovered is to be for their use, yet the action is the suit of the committee alone, and the district cannot interfere with it, and the fund, when recovered, is to be applied by the committee, as an officer of the law, to the use of the district, in paying teachers and for fuel and repairs.
A remedy being thus expressly provided for the committee to obtain the funds applicable to all proper expenses which can be incurred by him, we cannot believe it could be the intention of the Legislature to subject the district to an action for the recovery of the same sums, especially as such a suit could have no tendency to supersede the necessity of an action against the selectmen, if they refuse to pay. The only effect of such a construction would be to support two actions, when the whole object would be effectually accomplished by one.
Difficulties have been suggested, in case the committee, after incurring expenses for teaching, fuel or repairs, should be removed, or his official term expire before he is able to obtain the school money. How far the fund might be regarded as the property of the committee, or subject to his claim, to the amount of expenses properly incurred by him, need not here be considered. If the expenses were not incurred on the credit of the district, the removal of the officer would not make it liable.
Though we are satisfied the plaintiff was the legal pru- ■ [314]*314dential committee of the district, and properly authorized to incur.these expenses, yet he has mistaken his remedy, and must seek his reimbursement’from the school money, either by suit in the name of the district against the selectmen, or otherwise.
There must, therefore, be
Judgment for the defendants.