Phelon v. Inhabitants of Granville

5 N.E. 269, 140 Mass. 386, 1886 Mass. LEXIS 48

• Court: Massachusetts Supreme Judicial Court
• Decided: January 5, 1886
• Status: Published

Opinion

Holmes, J.

The statute requiring the appointment of a collector pro tempore to be made by a writing under the hands of the selectmen is not satisfied by a writing signed with the names of all by one selectman, in the absence of the others, and with no other authority than what is implied by their having agreed that the party should be appointed. Pub. Sts. e. 27, § 90. Reynolds v. New Salem, 6 Met. 340, 344. It is found as a fact, that there was no other authority in this case, and it is therefore unnecessary to consider whether a writing signed in the same way would have been valid even if the signatures had been authorized. Reynolds v. New Salem, ubi supra. It is equally unnecessary to consider whether such a writing could be ratified effectually, or whether there was evidence of ratification in this case, because, putting it at the lowest, a ratification after the oath of office was taken would come too late. The statutes clearly require that the oath shall be taken after the collector has been appointed, not while his appointment is in suspense, if it is possible that it should be in suspense. Pub. Sts. e.. 27, §§ 87, 90.

The last consideration also prevents our regarding the warrant issued after the oath was taken as a sufficient appointment, although that was under the hands of the selectmen. There is also the further obstacle, that the warrant was issued by the selectmen in their capacity of assessors, no assessors having been elected; Pub. Sts. c. 27, § 101; c. 12, § 1; and that the statutes of course do not contemplate the assessors issuing a warrant until after the selectmen have made their appointment. Pub. Sts. a. 27, §§ 90-92, 123; e. 11, §§ 62, 63; e. 12, §§ 79, 80.

It is argued that the plaintiff is entitled to recover for services actually rendered as collector de facto. The objections to collaterally impeaching the title of an officer defacto in a proceeding to which he is not a party, and when the rights of third persons are in question, (Fowler v. Bebee, 9 Mass. 231, 234, and Bucknam v. Ruggles, 15 Mass. 180, 182,) do not apply when the officer himself seeks to recover on the strength of his title. The services rendered are statutory services. The statutes require that they shall be performed by an officer appointed in a certain way, and provide for his compensation. Pub. Sts. ubi supra, and c. 12, §§ 80, 83. The plaintiff is not an officer dejure, as against the town, until the statutory conditions are complied with. There is nothing, therefore, to hinder the town from denying his title, if he claims compensation by virtue of his office. Or if he sets up a contract, express or implied, the answer is, that it is a contract which the statutes do not intend shall be made. The statutes exclude other and more informal methods of binding the town than the one which they point out, on grounds of public policy.

Under circumstances like the present, the current of authority elsewhere is that no action can be maintained. Riddle v. Bedford, 7 S. & R. 386. Commonwealth v. Slifer, 25 Penn. St. 23, 31. People v. Hopson, 1 Denio, 574, 579. Dolan v. Mayor of New York, 68 N. Y. 274, 279. Matthews v. Supervisors, 53 Miss. 715. People v. Potter, 63 Cal. 127. Samis v. King, 40 Conn. 298, 310. See Burt v. Dimmock, 11 Pick. 355, 357.

The more difficult questions, which have given rise to some conflict, as to the rights of an officer de jure against an officer de facto who has been paid, or against the town for the period covered by such payments, do not arise. Glascock v. Lyons, 20 Ind. 1. Hunter v. Chandler, 45 Mo. 452, 456. McCue v. Wapello, 56 Iowa, 698. Petit v. Rousseau, 15 La. An. 239. United States v. Addison, 6 Wall. 291. Comstock v. Grand Rapids, 40 . Compare Auditors of Wayne County v. Benoit, 20 Mich. 176 ; Stuhr v. Curran, 15 Vroom, 181. See 1 Dill. Man. Corp. (3d ed.) § 235, n. 2.

Exceptions overruled.