Braley, J.
The town having considered it advisable to join as defendants several of its citizens, who when acting as members either of a municipal committee or of its boards of selectmen participated in the negotiations, legislative proceedings and [458] an alleged contract of sale, all of which related to the acquisition b.y purchase of the company’s water plant, their liability should be determined first. They severally as public officers are charged with an abuse of their trust by entering into a conspiracy with the manager of the company to foist this plant upon the town at a price greatly in excess of its intrinsic value. If thereby pecuniary loss resulted, such conduct, if proved, would render them liable in damages, or to the costs of any litigation in which the town became involved by their corrupt action, as they were bound to act in good faith for the interest of their principal, and to buy at the lowest price for which the property could be purchased. Boston v. Simmons, 150 Mass. 461. Alvord v. Cook, 174 Mass. 120, 127. Emmons v. Alvord, 177 Mass. 466. Byrne v. Norcott, 13 Beav. 336, 346. Notwithstanding the redundant verbal setting found in the bill, to sustain this charge the evidence must show a corrupt combination either to do an unlawful act or to accomplish a lawful act by unlawful means. O’ Callaghan v. Cronan, 121 Mass. 114, 115. A full examination of the testimony, while it reveals the existence of a great diversity of opinion among the citizens, who finally became divided into two factions, one favoring the purchase at the price fixed by an hydraulic expert employed by the committee and the other opposing such purchase, with the consequent engendering of much dissension and partisan bitterness, fails to establish a conspiracy, or. even dishonest individual conduct. Beyond possible errors of judgment accompanied by a strong bias leading them to support the advisability of their own action in making the preliminary agreement with the company’s manager, the defendants appear to have acted in this part of the transaction as well as throughout the subsequent proceedings with fidelity and for what they considered the welfare of the town. When malfeasance by a public officer is charged, motive may become an important element, and, while pecuniary gain need not be shown, it is significant that the evidence does not disclose any advantage by way of office or of public or private emolument that any of these defendants might have hoped to receive in taking the course they are shown to have pursued. But even if their final action, when those in office sat as a board of selectmen, in not publishing to the community or stating in the warrant their [459] vote to buy the plant before the qualified inhabitants were called upon by them in town meeting to pass upon this proposition, in the form submitted, may be open to criticism, yet, if at a later date in the opinion of a majority of the voters the purchase was ill advised, such an error of judgment of itself is not dishonesty nor evidence of corruption without proof of connecting fraudulent conduct or of an unlawful purpose, neither of which is found. In an inquiry involving personal motives and integrity, and where nearly the whole of the oral testimony is given by the implicated officials, as in the present case, much depends upon the appearance of witnesses, the manner in which they give their evidence and their apparent credibility; and these characteristics the printed record, however full, cannot reproduce. From our examination/of the evidence, which has been fully reported, we find no substantial reason leading us to doubt the correctness of the result reached by the decree of the county court, which fully exonerated these defendants from all incriminating allegations. Skehill v. Abbott, 184 Mass. 145.
In whatever form they may be stated by the averments of the parties in their several pleadings, when freed from this entanglement of fraud and conspiracy, there remain two important questions upon the decision of which the rights of the company and the town depend. They are, whether the company is to be granted specific performance of an alleged contract of sale of the plant, or whether the town is to acquire it by purchase under the provisions of St. 1905, c. 477. Before taking them up, the validity of an earlier contract of which the town asks specific performance must be decided, for if this is enforceable these questions become immaterial. This contract with the company was executed on July 22, 1884, and gave the option of buying the waterworks with all connected privileges at a price which was to be fixed by appraisers who either were to be selected by the parties or appointed by this court, and nearly twenty years afterwards on July 14, 1904, the town voted to make the purchase. But at the date of the contract, Pub. Sts. c. 27, § 27, and at the date of the vote, R. L. c. 25, § 31, provided that a town could not buy without the consent of a majority of its selectmen. To constitute such assent affirmative action by them as a board of public officers is required, and is [460] not to be implied from the recitals found in the last clause of this' contract, that they were authorized to execute it in behalf of the town and the evidence is conclusive that the board in existence when the vote was passed declined to assent. Attorney General v. Eastern Railroad, 137 Mass. 45, 49. See Murdough v. Revere, 165 Mass. 109. This precedent condition not having been complied with, even if the contract in other particulars was one which the town could make, the vote was a nullity, and not only was the title of the company left unclouded, but no foundation had been laid upon which a bill in equity can now be maintained to compel specific performance. Smith v. Dedham, 144 Mass. 177. It therefore becomes unimportant to consider other serious objections which would have to be removed before such relief could be granted, and the result is that the town and the company were left unhampered from entering into subsequent negotiations. Assuming, without further discussion, that the appointment of a committee for this purpose on February 25,1904, and their conduct in the ensuing negotiations was within the scope of their authority, and that the vote to buy passed by the selectmen on March 13, 1905, was such official action by them as to be a full compliance with the requirements of R. L. c. 25, § 31, we come directly to the point on which this part of the controversy turns.
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Braley, J.
The town having considered it advisable to join as defendants several of its citizens, who when acting as members either of a municipal committee or of its boards of selectmen participated in the negotiations, legislative proceedings and [458] an alleged contract of sale, all of which related to the acquisition b.y purchase of the company’s water plant, their liability should be determined first. They severally as public officers are charged with an abuse of their trust by entering into a conspiracy with the manager of the company to foist this plant upon the town at a price greatly in excess of its intrinsic value. If thereby pecuniary loss resulted, such conduct, if proved, would render them liable in damages, or to the costs of any litigation in which the town became involved by their corrupt action, as they were bound to act in good faith for the interest of their principal, and to buy at the lowest price for which the property could be purchased. Boston v. Simmons, 150 Mass. 461. Alvord v. Cook, 174 Mass. 120, 127. Emmons v. Alvord, 177 Mass. 466. Byrne v. Norcott, 13 Beav. 336, 346. Notwithstanding the redundant verbal setting found in the bill, to sustain this charge the evidence must show a corrupt combination either to do an unlawful act or to accomplish a lawful act by unlawful means. O’ Callaghan v. Cronan, 121 Mass. 114, 115. A full examination of the testimony, while it reveals the existence of a great diversity of opinion among the citizens, who finally became divided into two factions, one favoring the purchase at the price fixed by an hydraulic expert employed by the committee and the other opposing such purchase, with the consequent engendering of much dissension and partisan bitterness, fails to establish a conspiracy, or. even dishonest individual conduct. Beyond possible errors of judgment accompanied by a strong bias leading them to support the advisability of their own action in making the preliminary agreement with the company’s manager, the defendants appear to have acted in this part of the transaction as well as throughout the subsequent proceedings with fidelity and for what they considered the welfare of the town. When malfeasance by a public officer is charged, motive may become an important element, and, while pecuniary gain need not be shown, it is significant that the evidence does not disclose any advantage by way of office or of public or private emolument that any of these defendants might have hoped to receive in taking the course they are shown to have pursued. But even if their final action, when those in office sat as a board of selectmen, in not publishing to the community or stating in the warrant their [459] vote to buy the plant before the qualified inhabitants were called upon by them in town meeting to pass upon this proposition, in the form submitted, may be open to criticism, yet, if at a later date in the opinion of a majority of the voters the purchase was ill advised, such an error of judgment of itself is not dishonesty nor evidence of corruption without proof of connecting fraudulent conduct or of an unlawful purpose, neither of which is found. In an inquiry involving personal motives and integrity, and where nearly the whole of the oral testimony is given by the implicated officials, as in the present case, much depends upon the appearance of witnesses, the manner in which they give their evidence and their apparent credibility; and these characteristics the printed record, however full, cannot reproduce. From our examination/of the evidence, which has been fully reported, we find no substantial reason leading us to doubt the correctness of the result reached by the decree of the county court, which fully exonerated these defendants from all incriminating allegations. Skehill v. Abbott, 184 Mass. 145.
In whatever form they may be stated by the averments of the parties in their several pleadings, when freed from this entanglement of fraud and conspiracy, there remain two important questions upon the decision of which the rights of the company and the town depend. They are, whether the company is to be granted specific performance of an alleged contract of sale of the plant, or whether the town is to acquire it by purchase under the provisions of St. 1905, c. 477. Before taking them up, the validity of an earlier contract of which the town asks specific performance must be decided, for if this is enforceable these questions become immaterial. This contract with the company was executed on July 22, 1884, and gave the option of buying the waterworks with all connected privileges at a price which was to be fixed by appraisers who either were to be selected by the parties or appointed by this court, and nearly twenty years afterwards on July 14, 1904, the town voted to make the purchase. But at the date of the contract, Pub. Sts. c. 27, § 27, and at the date of the vote, R. L. c. 25, § 31, provided that a town could not buy without the consent of a majority of its selectmen. To constitute such assent affirmative action by them as a board of public officers is required, and is [460] not to be implied from the recitals found in the last clause of this' contract, that they were authorized to execute it in behalf of the town and the evidence is conclusive that the board in existence when the vote was passed declined to assent. Attorney General v. Eastern Railroad, 137 Mass. 45, 49. See Murdough v. Revere, 165 Mass. 109. This precedent condition not having been complied with, even if the contract in other particulars was one which the town could make, the vote was a nullity, and not only was the title of the company left unclouded, but no foundation had been laid upon which a bill in equity can now be maintained to compel specific performance. Smith v. Dedham, 144 Mass. 177. It therefore becomes unimportant to consider other serious objections which would have to be removed before such relief could be granted, and the result is that the town and the company were left unhampered from entering into subsequent negotiations. Assuming, without further discussion, that the appointment of a committee for this purpose on February 25,1904, and their conduct in the ensuing negotiations was within the scope of their authority, and that the vote to buy passed by the selectmen on March 13, 1905, was such official action by them as to be a full compliance with the requirements of R. L. c. 25, § 31, we come directly to the point on which this part of the controversy turns.
At some period of time the statute requires that a majority of the voters of the town which is to purchase shall act upon the subject either by ratifying or rejecting a proposed contract of sale. The question now presented is to be distinguished from cases where under acts incorporating water supply companies a condition often is inserted that the town which is to be supplied may buy upon certain terms, or where subsequent legislative permission is given to the municipality to erect and maintain a competing water system, unless the water company already established elects to sell, as in Braintree Water Supply Co. v. Braintree, 146 Mass. 482; Rockport Water Co. v. Rockport, 161 Mass. 279; West Springfield v. Springfield Aqueduct Co. 167 Mass. 128; Newburyport Water Co. v. Newburyport, 168 Mass. 541; and Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365. The general law, however, is framed for the purpose of enabling towns to buy in the market if a bargain can be [461] made, and, instead of commissioners being appointed to estimate values and fix a price which is the usual method provided by special legislative acts, the selectmen are given authority to act in behalf of the town, and to attend to any preliminary details, and when they have reached a conclusion to report to the town, which then decides whether a contract shall be perfected by its sanction. Ordinarily a board of selectmen would not enter upon such inquiries or make an inchoate agreement to buy unless directed by the municipality, but this precaution of administration does not limit their statutory power, although its exercise well may be made by them to depend upon the will previously expressed of a majority of the voters. The language of the original act, which is St. 1870, c. 93, required the “ consent ” of a majority of the selectmen “ sanctioned and ratified by a majority of the voters ” of the town, but this phraseology does not differ in meaning from the language of the last revision. Reynolds v. New Salem, 6 Met. 340, 343. Under either, the provisions of the proposed contract may be first determined by the selectmen upon conference with the company, which must be presumed, however, to act with full knowledge of the statutory limitation. Dill v. Wareham, 7 Met. 438. Wormstead v. Lynn, 184 Mass. 425, 428. But after this has been accomplished a contract of sale does not become binding or enforceable until ratified by a majority of the voters, and when this is done thereafter the contracting parties become respectively the water company and the town. In the prolonged consideration of the whole subject that ensued at numerous town meetings and elsewhere, after the committee had been appointed, it is plain from the evidence that the voters generally had become fully acquainted with all of the important phases of the proceedings, yet, as they were not charged with -constructive notice from the record kept by the selectmen, apparently they had not been informed before March 16,1905, that the board finally had decided to take the works at a price agreed upon between them and the company. Commonwealth v. McGarry, 135 Mass. 553, 554. But whatever outside information they may have possessed, and from whomsoever derived, the warrant for the town meeting was the only authorized source to which the voters could look to ascertain what subjects [462] were presented for their decision, and no valid action could be taken unless there was a specific article covering the subject matter. Grover v. Pembroke, 11 Allen, 88. Sherman v. Torrey, 99 Mass. 472. Whitney v. Stow, 111 Mass. 368. Reed v. Acton, 117 Mass. 384. Woodlawn Cemetery v. Everett, 118 Mass. 354, 362. Locke v. Lexington, 122 Mass. 290. Bloomfield v. Charter Oak Bank, 121 U. S. 121, 129. While the warrant is not to be construed with technical strictness and intelligible notice is all that is required, yet an article which presents only the general proposition whether a purchase shall be made, but action upon which does not commit the town to buy, is legally distinct from a proposition of ratification which if carried does bind the town. The one presents for consideration a question of initiative public policy, while the other upon being duly voted by the town and accepted by the company creates a contract which cannot be revoked without the assent of both. Braintree Water Supply Co. v. Braintree, ubi supra. The word “ ratified ” as used in the statute plainly means that when the selectmen issue the warrant they are supposed to have taken appropriate precedent action, otherwise there is no proposal of purchase in existence which can be made the subject of ratification, and which by the ratifying act thereupon becomes an existing contract. Locke v. Lexington, ubi supra. See New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381, 382. The cases of Harrington v. Harrington, 1 Met. 404, 407, and Geer v. Fleming, 110 Mass. 39, on which the company relies to sustain its contention that it was neither necessary for the selectmen to act before the warrant issued, nor for the warrant to state that they had acted, relate to the laying out of town ways. In the performance, of this function under R. L. c. 48, § 71, the selectmen act as public officers, and not as agents of the town, and as the way must be laid out, and the report filed seven days before the town meeting at which it is to be accepted, this action need not necessarily be taken before the warrant issues, but if not done within the statutory time, the warrant is rendered nugatory. But even then an article must be inserted sufficiently definite to notify the inhabitants that they may be called upon to act upon the subject. Jones v. Andover, 9 Pick. 146. Both of these irremediable defects are [463] found, for when on March 7,1905, the warrant for the meeting of March 16,1905, was issued, the selectmen neither had acted, nor did the warrant contain an article which under the most liberal interpretation conveyed any notice to the voter that by his vote he was irrevocably committing the town to take over the property under a proposed contract of purchase which previously had been negotiated and accepted by the board of selectmen.