Opinion
Opinion filed May 2, 1933.
Towns — Necessity of One Relying on Vote of Town To Prove Legal Notice of Meeting at Which Vote Was Passed — Want of Notice of Town Meeting as Jurisdictional Defect — Requisites of Notice for Town Meeting — G.L. 3918 — Sufficiency of Notice — Mandamus — On Demurrer to Petition for Mandamus, Petition Is Tested as Pleading, and Immaterial Matter Not Considered — Mandamus Not To Issue as to Discretionary or Permissive Matters — Vote of Town Construed as Imposing Duty on Selectmen To Execute Contract — Evidence — Record of Town Meeting May Not Be Varied by Parol — Admissibility of Parol Evidence To Show Facts and Circumstances Attending Execution of Written Instrument — Identification of Subject-matter of Written Contract by Parol — Applicability to Record of Town Meeting — Pleading — Sufficiency of Petition for Mandamus as against Demurrer.
1. No one can rely on vote at town meeting as giving him any rights against town, without proving legal notice of meeting at which vote was passed.
2. Want of proper notice of town meeting is jurisdictional defect and fatal to validity of vote at such meeting if called in question.
3. To comply with requirements of G.L. 3918, that warning of town meeting shall set forth "the business to be done and subjects to be considered," all that is necessary is that they shall be stated with such reasonable certainty as will indicate to all interested subject-matter of proposed action by town.
4. Warning of special town meeting called under provisions of Acts 1931, No. 49, relating to employment of community physicians, held to state purpose of meeting with sufficient certainty.
5. On demurrer to petition for mandamus to compel selectmen of town to execute on its behalf certain contract with plaintiff to establish office as physician in such town, pursuant to vote at special town meeting called under provisions of Acts 1931, No. 49, that vote passed went further than warning and appropriated specific sum to secure contract, held immaterial, for Supreme Court tests petition as pleading, and only so far as demurrer requires, and question when, how, or if plaintiff can get his pay is not involved.
6. If vote authorizing selectmen to contract with physician left matter to discretion and judgment of selectmen, so that vote was permissive only, mandate from Supreme Court will not issue to compel selectmen to execute contract.
7. Vote by town at special meeting called under provision of Acts 1931, No. 49, that "selectmen are hereby authorized," etc., to make contract with physician, held to impose upon selectmen duty to sign contract on town's behalf, in circumstances under which vote was passed.
8. Where there is record of town meeting, it cannot be added to or varied by parol.
9. Where it is necessary in order to ascertain true meaning and effect of written instrument, evidence of facts and circumstances attending its execution is admissible.
10. Extrinsic evidence, either oral or written, may always be admitted to identify subject-matter of contract.
11. As regards record of town meeting, parol evidence is admissible, when necessary, to apply vote to its proper subject-matter.
12. On demurrer to petition for mandamus to compel selectmen of town to execute on its behalf certain contract with plaintiff to establish office as physician in such town, where vote taken at special town meeting, called under provisions of Acts 1931, No. 49, was so indefinite as to leave uncertain whether it was intended to leave terms of contemplated contract to discretion of selectmen, but allegations of petition showed circumstances warranting inference that vote had reference to particular contract set out by petition, Supreme Court could not say that vote did not refer to such contract, and hence demurrer was overruled.
PETITION for writ of mandamus preferred to the Supreme Court for Windham County. Heard on demurrer to petition at the February Term, 1933, of the Supreme Court. Demurrer overruled, with costs to plaintiff. Defendants given leave to replead.
The vote of the town "that the selectmen be and hereby are authorized to make a contract with Dr. F.A. Walsh," etc., to establish himself as a physician in the town and to attend the sick of said town made their action not discretionary, but mandatory and ministerial, for the word "authorized" when used in public acts, such as statutes or municipal resolutions, concerning public interests, has almost universally been construed to be mandatory and to impose a positive and absolute duty. Kellogg v. Page, 44 Vt. 356; Chase v. United States (C.C.A.), 261 Fed. 833; U.S. Sugar Equalization Board v. De Ronde, 7 Fed. (2d) 981; People v. Otsego County Supervisors, 51 N.Y. 401; Mayor, etc. v. Marriott, 9 Md. 160, 66 A.D. 326; Magaha v. Hagerstown, 95 Md. 62, 51 A. 832; Landon v. Heitfeldt, 41 N.J. Eq., 267, 3 A. 883; Catron v. Marron, 10 N.M. 200, 142 P. 380; Veazie v. China, 50 Me. 518; Bowen v. Minneapolis, 47 Minn. 115, 49 N.W. 683; Rankin v. Buckman, 9 Or. 253.
The principle involved in the foregoing cases is analogous to that involved in many cases where the construction of the words "may" or "it shall be lawful," are held to be mandatory and not permissive. Mason v. Fearson, 9 How. 248, 13 L. ed. 125; Rock Island County v. United States, 4 Wall. 435, 18 L. ed. 419, 423; City of Galena v. United States, 5 Wall. 705, 18 L. ed. 560; Mayor of New York v. Furze, 3 Hill (N.Y.) 614.
That the contract was not incorporated in the vote of the selectmen or its record, does not affect the legality of the action taken. In construction of a writing, the court will look at the subject-matter, the surrounding circumstances, and the obvious purpose which the parties had in view to determine the intent. It is also well settled that it is always proper to identify the subject-matter referred to in a written instrument, and the facts connected with the vote taken are properly pleaded for the purpose of identifying the contract in question as being the "contract" mentioned in the record. That a record was made of the vote taken in town meeting does not necessarily make the record conclusive, for it is proper to show the subject-matter, so long as such facts do not vary, enlarge, or contradict the record, Rock Creek Tp. v. Codding, 42 Kan. 649, 22 P. 741; Morgan v. Wilfley, 71 Iowa, 212, 32 N.W. 265, and the facts alleged in the petition concerning the contract do not in any way enlarge, vary, or contradict the record, but merely identify the contract referred to in the vote with the contract under consideration, so the intention of the meeting can be ascertained.
The town had authority to enter into such a contract, and no new duty was imposed upon the selectmen, for it was and is their duty to execute all contracts on behalf of the town within its power, where such contracts are authorized, unless that duty is expressly placed elsewhere. Acts 1931, No. 49; New Haven v. Weston, 87 Vt. 7, 19, 20; Cabot v. Britt, 36 Vt. 349, 351-353.
The warning of the special meeting was sufficient adequately to support the vote taken, including the appropriation.
The statute provides that the town may at any annual or special meeting appropriate money to secure a regular licensed physician "when an article for such purpose has been duly inserted in the warning, and the legislative history shows that towns were empowered to appropriate first a limited sum, and then without limit and at their discretion, for that purpose. Acts 1921, No. 101, § 1, amended by Acts 1927, No. 56, and by Acts 1931, No. 49.
Article 1 of the warning clearly indicated that the matter to be considered was the question of securing the service of Doctor Walsh as a physician and making a contract with him, and Article 2 was to transact any other business legal and proper to come before said meeting. Every voter knew that, if it were decided to procure the physician's services, an appropriation would be necessary, and that, if it was voted to contract, an appropriation would be made. The warning set forth in terms the purpose or object for which the money was to be appropriated with such certainty as gave notice to all interested of the subject-matter of the proposed vote or action of the town, and the time and place of meeting. This was all that was necessary. Moore v. Beattie, 33 Vt. 219; Ovitt v. Chase, 37 Vt. 196; Blodgett v. Holbrook, 39 Vt. 336; Kittridge v. Walden, 40 Vt. 211; Alger v. Curry, 40 Vt. 437; Weeks v. Batcheller, 41 Vt. 317; Hickok v. Sherburne, 41 Vt. 409.
The duty of the defendants being positive and absolute — ministerial, involving no discretion — and the right of the petitioner being clear and certain, mandamus to compel execution of the contract was the proper remedy. High, Extr. Remedies, p. 230, § 324; Burlington ex rel. v. Mayor of Burlington, 98 Vt. 388, 404; Clement v. Graham, 78 Vt. 290, 318, 319; United States v. Black, 128 U.S. 40, 32 L. ed. 354.
The allegations in the petition, that the vote of the town directed the defendants to sign the contract set forth in the petition, and that the selectmen refused to perform the ministerial act of signing said contract, are legal conclusions, are not well pleaded, and are not admitted by the demurrer, for a demurrer admits only such facts as are well pleaded. Page et al. v. McClure et al., 79 Vt. 83.
The warning for the town meeting was insufficient. The statutory requirement is to notify all persons interested of the subject-matter of the proposed vote, without which any business transacted is void. The warning did not contain any indication that the voters would be asked to appropriate a sum of money to be expended by the town, but merely to see if the town would vote to procure the services of Doctor Walsh, and to authorize the selectmen to contract with him to establish an office in the town. The requirement of Acts 1931, No. 49, is that the warning for a meeting shall have inserted therein an article to appropriate a sum of money to be used for a specified purpose, and other legislation makes the same requirement. G.L. 3918; Alger v. Curry, 40 Vt. 437; G.L. 4029, 4155; Acts 1923, No. 69; School Dist. No. 13 in St. Johnsbury v. Smith, 67 Vt. 566; Neill v. Ward, 103 Vt. 117.
Determination of a number of questions involved required the exercise of the judgment and discretion of the selectmen, and such determination was not a ministerial act, hence mandamus was not a proper remedy. Fuller v. Gould et al., 20 Vt. 643; Stearns v. Miller et al., 25 Vt. 20; Davis v. Strong et al., 31 Vt. 332; University Society v. Leach et al., 31 Vt. 108; State v. Howard, 83 Vt. 6; Sanborn v. Weir et al., 95 Vt. 1.
If, to carry out the contract proposed by petitioner, it became necessary for the selectmen to borrow money on the credit of the town, then the vote authorizing a contract was unenforceable. Blush v. Town of Colchester, 39 Vt. 193; Atwood v. Lincoln, 44 Vt. 332; Allen v. City of Burlington, 45 Vt. 202.
Fenton, Wing, Morse Jeffords for the petitioner.
A.F. Schwenk and W.R. Daley for the petitionees.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
This is a petition for a writ of mandamus to compel the selectmen of the town of Whitingham to execute, on behalf of the town, a certain contract with the plaintiff, agreeably to a vote of that town. The petition is demurred to. We are, therefore, only concerned with the allegations therein.
Disregarding for the moment all others, the following facts are alleged. The plaintiff is a physician regularly licensed to practice his profession in this State. The selectmen of the town of Whitingham, acting under No. 49, Acts of 1931, called a special meeting of that town for July 23, 1932, under a warning specifying the business to be considered as follows:
"Art. 1. To see if the town will vote to procure the services of Dr. F.A. Walsh and to authorize the selectmen to contract with said Dr. F.A. Walsh to establish an office in said town of Whitingham and to attend the sick of said town.
"Art. 2. To transact any other business legal and proper to come before said meeting."
The meeting was held on the date named, and a proposed contract in writing was laid before it, and discussed by the voters. Thereupon, the meeting by vote directed the selectmen to execute said proposed contract. The plaintiff did execute it, but the selectmen refused to do so.
It is to be observed that there is no general allegation of the regularity of the call for this special meeting. But the warning is set out in the petition, and the first question presented challenges its legal sufficiency. It is not and cannot be disputed that no one can rely upon a vote as giving him any rights against a town, without proving a legal notice of the meeting at which the vote was passed. Bloomfield v. Charter Oak Bank, 121 U.S. 121, 30 L. ed. 923, 927, 7 Sup. Ct. 865. The want of such notice is a jurisdictional defect and fatal to the validity of the vote if called in question. G.L. 3918 requires that the warning of a town meeting shall set forth "the business to be done and the subjects to be considered." These must be made reasonably clear. But they may be set forth in general terms. All the law requires is that they shall be stated with such reasonable certainty as will indicate to all interested the subject-matter of proposed action by the town. Moore v. Beattie, 33 Vt. 219, 222; Alger v. Curry, 40 Vt. 437, 444; Hickok v. Shelburne, 41 Vt. 409, 416; School District v. School District, 64 Vt. 527, 531, 25 A. 433. In this respect, the warning is sufficient.
But the vote passed at the meeting went further than the express terms of the warning required. It is set out in the petition, and shows that an appropriation of $2,000 was voted to secure the contract with the plaintiff; and it is urged that the warning was insufficient to authorize an appropriation. But we are testing the petition as a pleading, and only so far as the demurrer requires. So far as we are now concerned, the validity of the appropriation is immaterial, for the question when, how, or if the plaintiff can get his pay is not involved.
The allegation that the town directed the selectmen to execute the contract set out has a different standing. The wording is that the town "by said vote above referred to" directed its selectmen. This is all that is alleged. It obviously refers to the vote set out in the petition, which reads, "the selectmen are hereby authorized," etc. So we must examine that term to determine its true meaning in the vote referred to. It is frequently the case that an expression permissive in form is imperative in law. If the meaning here is that the matter was to be left to the discretion and judgment of the selectmen — if the vote was permissive only — a mandate from this Court will not issue. Sanborn v. Weir, 95 Vt. 1, 5, 112 A. 228. That the word "authorized" ordinarily implies permission, merely, is plain enough. Yet, when used in connection with the acts of public officers, it is frequently if not usually construed as mandatory and as imposing a positive duty. Jones v. Madison County Commissioners, 137 N.C. 579, 590 et seq., 50 S.E. 291; Berridge v. Nickell, 91 Or. 51, 52, 178 P. 353; Chase v. United States (C.C.A.), 261 Fed. 833, 837, and cases cited. These and other cases apply the rule that a statute which "authorizes" or "empowers" a public officer to do a certain thing imposes upon him a positive duty to do it.
While it was said in Kellogg v. Page, State Treasurer, 44 Vt. 356, 359, 8 A.R. 383, that laws "authorizing" public officers to do an act are to be construed, as all other statutes are, according to the intent of the Legislature that enacted them to determine whether they are permissive or mandatory, the books show that the great weight of authority is to the effect that such acts are to be taken as imposing a positive duty upon the officer named, unless words of limitation are used therein. Considering the circumstances under which the vote in question was passed, as shown by the allegations of the petition, it seems plain that the town meeting intended to instruct the selectmen to close this contract with the plaintiff. The very purpose of the meeting was to decide whether they should have a doctor available for the care of sick persons in town. The contract was drawn up, presented to the meeting, and fully discussed. The vote was passed, and we have no doubt that when the meeting adjourned the voters supposed that the whole matter was settled. We hold therefore that the vote imposed upon the selectmen the duty to sign a contract with the plaintiff.
As we have seen, the allegation is that, by its vote, the meeting directed the selectmen to sign this contract — the one recited in the petition. The defendants insist that this position is untenable. The question is thus raised as to the effect to be given to the record of the vote. Its language is that the selectmen are authorized to make "a contract," not "the contract." Is this to be taken literally or is it to be construed to mean the latter? The law requires the town clerk to record the votes passed at a town meeting. G.L. 3949. We take it from the petition that the vote therein set forth is a copy of the record of the meeting of July 23, 1932. The rule is that where there is such a record, it cannot be added to or varied by parol. Hoag v. Durfey, 1 Aikens, 286, 287; Hutchinson v. Pratt, 11 Vt. 402, 421; Slack v. Norwich, 32 Vt. 818, 822; Cameron v. School District, 42 Vt. 507, 510. But this is nothing more than one application of the so-called parol evidence rule that obtains in cases of written documents, generally. It is frequently necessary, in order to ascertain the true meaning and effect of written instruments, to receive evidence of facts and circumstances attending their execution. Such evidence is admissible. Dean Wigmore says "that the words of a document are never anything but indices to extrinsic things, and that therefore all the circumstances must be considered which make clear the sense of the words — that is, their association with things." 5 Wig. Ev. 404. So it is that extrinsic evidence, either oral or written, may always be admitted to identify the subject-matter of a contract. It is competent so to prove the identity of the particular building covered by an insurance policy. Williams Mfg. Co. v. Insurance Co., 93 Vt. 161, 178, 106 A. 657. Parol evidence is admissible to show the location of hay sold f.o.b. by written contract. Adams v. Janes, 83 Vt. 334, 337, 75 A. 799. So with a deed, when an ambiguity appears therein only when it is applied to the land, parol evidence is admissible to remove the uncertainty. Patch v. Keeler, 28 Vt. 332, 335; Wead v. St. Johnsbury, etc., R.R. Co., 64 Vt. 52, 58, 24 A. 361. When the person to whom a bequest is made is uncertain, parol evidence is admissible, not to vary the will, but to apply it. In re Welch's Will, 78 Vt. 16, 18, 61 A. 145. It is just so with the record of a town meeting; the law allows parol evidence to be received when it is necessary to apply a vote to its proper subject-matter. Dillon, Mun. Corp. (5th ed.), § 555. Thus, a vote to indemnify an inhabitant for his costs in a certain suit which had arisen or might arise on account of the so-called "Gray line," was passed by the defendant town, and in a suit to enforce a claim thereunder, it was held that parol evidence was admissible to identify the suit referred to in the vote. Baker v. Windham, 13 Me. 74, 80.
The record before us shows a vote so indefinite that it leaves it uncertain whether it was intended to leave the terms of the contemplated contract to the discretion of the selectmen, while the allegations of the petition show circumstances warranting the inference that the vote had reference to the contract set out. In these circumstances, it cannot be said that the vote did not refer to that contract, and that is enough for our present purposes, since the inference that it did is not inconsistent with the language of the record.
Demurrer overruled, with costs to the plaintiff. Let the defendants replead if they be so advised.