.Mr. Justice Gray,
after stating the ease as above reported, .delivered the opinion of the court,
W e have not found it necessary to consider how far a town in .Connecticut has the power to give promissory notes, because in our opinion the evidence in this case is incompetent to prove that this town ever authorized its treasurer to make the notes in suit, Or did any :act which made them binding on the town.
Towns in Connecticut, as in the other New England Statés, differ from trading companies, and even from municipal corporations elsewhere. They are territorial corporations,'.into which the State is. divided by the legislature, from time' to time, at its discretion, for political purposes and the-convenient administration of -governnlent; they have those powers only, which have1 been expressly conferred upon them by statute, or which- are necessary for conducting municipal affairs; and all the inhabitants of a town are members-of the quasi corporation. 1 Swift's System, 116, 117; Granby v. Thurston, 23 Conn. 416; Webster v. Harwinton, 32 Conn. 131; Dillon Mun. Corp. § 28-30.
• In Connecticut, as in Massachusetts and Maine, by common law or immemorial usage, the property of any inhabitant may be taken-on execution upon a judgment-against the town. Atwater v. Woodbridge, 6 Conn. 223, 228; McLoud v. Selby, 10 Conn. 390; Beardsley v. Smith, 16 Conn. 368; 5 Dane Ab. 158; Chase v. Merrimack Bank, 19 Pick. 564, 569; Gaskill v. Dudley, 6 Met. 546; Adams v. Wiscasset Bank, 1 Greenl. 361; Fernald v. Lewis, 6 Greenl. 264. See also Hopkins v. Elmore, 49 Vt. 116; Rev. Stats. N. H. 1878, c. 239, § 8.
A town cannot make a contract, or authorize any officer or agent to make one in its behalf, except by vote in a town meeting' duly notified or warned; and the notice or-warning must specify the matter to be acted- on, in order that all the inhabitants (whose, property will be subject Jo be taken on execution to satisfy the obligations of the town) may know in-advance what business is to be transacted at the meeting. If' the subject of the vote is not specified in the notice of warning, the vote has no legal effect, and binds neither the .town nor the inhabitants.. No one can rely upon a vote as giving him any rights against the town, without proving a sufficient notice or warning of the meeting'at which the vote was passed. Reynolds v. New Salem, 6 Met. 340; Stoughton School District v. Atherton, 12 Met. 105; Moor v. Newfield, 4 Greenl. 44; Dillon Mun. Corp. § 266-268.
Upon this point'the. statutes-and decisions of Connecticut are perfectly clear.
i The statutes require the annual town meetings to be held-in October, November or'December, and permit special meetings to be convened when the selectmen deem it necessary, or on the application of twenty inhabitants qualified to vote in town meetings; and provide for notifying or warning both annual and special meetings as follows: "When town meetings are to be held, a notification, either written or printed, specifying the objects for which -they are to be held, signed by the.-.seleetmeñ, or a majority of them, set upQn the sign post or sign posts in the towns, at leash five days inclusively before the meeting is to be held, shall be sufficient notice to the inhabitants to attend such meeting."' Eev. Stats. 1866, tit. 7, § 19r 21; 1821, tit. 103, § 2. They also provide thatiC the Avarning of eArery meeting of any borough, city, ecclesiastical society, school society, school district, or other public community, shall specify the objects for which such meeting is to be held." Kev. Stats. 1866, tit. 7, § 232.
"Whenever a town meeting is warned agreeably to the provision above'quoted, the statutes, with a vieAV to preserving the best eAddence of the contents of the notice or Avarning, malice it the duty of the selectmen to cause a copy or duplicate thereof to be left with the toAvn cleric before the meeting, and the duty of the cleric to record it. Bév. Stats. 1866, tit. 7, § 19. Bút these duties are imposed on the selectmen and the cleric as public officers, not as agents of the town. They are not made duties of the inhabitants of the town in their corporate capacity, but official duties of those charged Avith their performance. The neglect of' the officers to file or to record a sufficient notice of a town meeting is theirs 'only, and not the neglect of-the'town. So far as the town is concerned, the utmost effect, .of- an omission to .record the notice is to authorize its contents to he proved by other evidence. Brunswick First Parish v. McKean, 4 Greenl. 508.
.The annual election of town officers, or any other act wh'.chthe.statutes require to be done-'by the inhabitants at -each annual meeting, might perhaps be sufficiently proved by the -record of what was> done at the meeting, without proving' a • special notice of it in the warning. Thayer v. Stearns, 1 Pick. 109; Gilmore v. Holt, 4 Pick. 258. But, with those excep-i tions, such 'a notice is a necessary prerequisite to the validity of any act of the town, either at the annual meeting or at a special meeting.-
' The statutes, for instance, provide that " the inhabitants'of the respective towns, in legal meetings assembled, shall have power" to make certain by-laws for .the welfare of the towns.. Kev. Stats. 1866, tit. Y, § 31; 1821, tit. 103, § 6.' But it has always been held that no by-law, though passed at, an annual meeting, is valid, without a previous notice thereof in the warning.
In the leading case, decided in 182.4, of Hayden v. Noyes, 5 Conn. 391, where the,annual meeting of a, town was warned to choose town officers, "and to do any other business then thought proper by said meeting,"' the Supreme Court of Errors decided that by-laws passed at that meeting, to regulate the shell fishery of the town, were void; and Chief Justice Hosmer, delivering judgment, said:
" By the act concerning towns, the mode of warning town meetings is specially prescribed. There is' to' be a notification in writing, ' specifying the objects for which they are to be held,' signed by the selectmen, and set upon the public sign post or posts in the town, at least five days before the meeting. A meeting not warned agreeably to the mode designated is no legal congregation of the town; ancl jts acts in that capacity are void. If the object be to regulate the clam and oyster fisheries, that object must be .specified in the warning, in an intelligible manner. A notification to assemble a town meeting for a lawful purpose, duly specified,-and to do other town business, is, except as to thé specification, as entirely exceptionable as if the town were warned to meet and- do any business they should think proper. . It is the purpose of the law, not to prescribe a frivolous form, but .to give substantial information. If the object of "the meeting is specified, it will present a motive to the inhabitants to be present, and they will leave business, even if it' be pressing, provided they feel an interest in the subject to be determined. On the other hand, if-the subject is unimportant, and any of the inhabitants should feel no concern in the result; they may with safety pursue their ordinary businessand this certainly is matter of convenience." " The warning, in the case before us, neither conforms to the words nor spirit of the law, and, if sanctioned, would repeal the statute." 5 Conn. 395, 396.
' In a similar case in 1830, that decision was followed, and it was adjudged, reversing the judgment of a lower court, that it was incumbent on the party offering the vote of 'the town in evidence, and seeking to avail himself of it, to prove that the meeting was duly warned, although the vote purported on its face to have been passed by the town "in legal meeting assembled ; " and the court said: " The borough and the town are, confessedly, inferior corporations. They act not by any inherent right of legislation, like- the legislature of the State; but their authority is delegated; and their powers, therefore, must be strictly pursued. - Within the limits of their charter, their acts are valid; without it, they are void. It having been established, in the case of Hayden v. Noyes, above cited, that to render an act of a town, precisely of this character, valid, it must appear that the meeting of the town had been specially warned for that purpose ; and this not appearing on the doings of the town, in this case, nor from any proof aliunde to establish the fact, the. judgment is erroneous. Perhaps it should appear on the face of the proceedings; but, at least, he who seeks to enforce the act should prove such warning to have been given." Willard v. Killingworth, 8 Conn. 247, 254.
There is nothing in the later decisions of that court, which tends to shake the rules thus established.
In Brownell v. Palmer, 22 Conn. 107, the vote of the town, which was presumed to be valid, without proof of the warm ing, was a vote passed at an annual meeting twenty-five years before, accepting a discontinuance in due form by the selectmen of an ancient highway, which was proved to have been disused ever since some time before that vote, and. which there was strong ground therefore for presuming to have been discontinued. See Avery v. Stewart, 1 Cush. 496 ; Fletcher v. Fuller, 120 U. S. 534. Jn the case of a recent vote, the rule is otherwise. For instance, in State v. Taff, 37 Conn. 392, a vote of a town, fifteen years before, accepting the laying put of a highway by the selectmen, was held insufficient for want of any proof of the warning; and the highway was established upon the independent ground of dedication.
In Isbell v. New York & New Haven Railroad, 25 Conn. 556, the town clerk's record of the meeting at which'the bylaw in question was passed recited that the meeting was " legally warned and- held for the purpose of making a bylaw " upon the particular subject; and the case was thus reconciled with that of Willard v. Killingworth, above cited. The record made by the clerk in the performance of his legal duty was sufficient, and perhaps' conclusive, evidence of the fact recorded. Thayer v. Stearns, 1 Pick. 109.
. In Society for Savings v. New London, 29 Conn. 174, the sufficiency of the warning was not questioned. •
.In Baldwin v. Forth Branford, 32 Conn. 47, a vote passéd upon an insufficient warning, and therefore invalid, was upheld because it had been, ratified by the town at a subsequent meeting duly warned and held under a confirmatory act. of the. legislature.
The two remaining Connecticut cases, cited at the bar, were suits to compel towns to guarantee the bonds of a railroad corporation, in accordance with votes passed under authority conferred by statute.
In the one, the vote was passed at a meeting duly warned and held; and the decision was that the vote, as recorded by the town, taken in connection with the warning, which was also recorded, appeared to have been taken by ballot, as required by law, and that the town was estopped to show, by an amendment of the record, made after, the railroad corporation and its contractors had acted upon the vote for three years,' that the vote was - not so taken. New Haven, Middletown & Willimantic Railroad v. Chatham, 42 Conn. 465. The case is an exceptional one, depending on its peculiar circumstances.. Dillon Mun. Corp. § 164, note.
- But in the other case, in which the Warning, as recorded, showed that it had been posted less than the requisite number' of days before the meeting at which the town voted to guarantee the bonds on ,certain coñditionsj it was adjudged that the vote was invalid; and that the town was not estopped to prove 'the" defect in the Warning, and the consequent invalidity of the vote, by a recital in the record that the vote was passed at a meeting " legally warned and held," or by subse-. quent proceedings, after the railroad corporation had substantially, .complied with those conditions, by which, the town, under a warning to determine what disposition should, be made of the bonds of the railroad corporation held by the. town, ahd to pay interest on its bonds, and to take such action as to secure the completion of the railroad, voted to let the conditions of the former vote remain as .they were.' The court said, " The assembled voters are without power to act for or bind the town, unless they have been called together in the statutory way and at the statutory time;" and also, after observing that " every voter who read the call" for the second meeting- " might safely absent himself from the meeting in the certainty that under the call it could not impose the burden of a guarantee kpon the town," added, "¥e cannot-order the town to guarantee any bonds, unless it is made clear that at a lawful meeting, so called as to give the voters full- knowledge of its purpose, .they have assumed the burden; it is not -to be placed upon them by inference."' Brooklyn Trust Co. v. Hebron, 51 Conn. 22, 29, 30.
It follows that the vote passed at the annual meeting of the town of Bloomfield in 1868, purporting to authorize the town treasurer to borrow money for the use of the town, was invalid, for want of any evidence that the subject was specified in the warning. The statement in the record of the meeting, that it was " legally warned," shows only that it had been duly warned for some purposes, not for Avhat'purposes.
The Circuit' Court ruled that this vote did not of itself -authorize the treasurer to borrow -money; but submitted the vote, with the other evidence in the case, to the' jury, as suffi-, cient to authorize them to find either that the town had made him its general agent to borrow'money, or that it had ratified his acts, or that' it Avas estopped to deny their validity.'
That evidence consisted only, 1st. Of forty-four notes made by the treasurer to sundry individuals' after the passage of that vote; 2d. Of the reports made ih print by the selectmen and treasurer to the annual meetings of the town from 1869 to 1878 inclusive, showing various, sums received or paid "on town notes," and a gradually, increasing " indebtedness of the town by notes; " and the records of those meetings, shoAving that in 1869 such reports were "read and accepted," and that in after years no action on them was taken by the town; 3d. Of a vote passed by the toAvn in 1880, authorizing the selectmen to make notes in behalf of the toAvn to take up and cancel certain memoranda of indebtedness, made by officers of the toAvn, dated July 1,1879, for money lent to the town, by various persons; and the acts of the selectmen pursuant -to that vote.
Any ratification of an act previously unauthorized must, in order to bind the principal, be Avith full knowledge of all the material, facts. Owings v. Hull, 9 Pet. 607; Bennecke v. Insurance Co., 105 U. S. 355. And no estoppel.in pais can be created, except by conduct which the person setting up the estoppel has the right to rely upon, and does in fact rely and act upon. Burgess v. Seligman, 107 U. S. 20; Scovill v. Thayer, 105 U. S. 143; Brant v. Virginia Co., 93 U. S. 326.
The vote of those who attend a toAvn meeting being of no validity against the town or its inhabitants, unless the object of the vote -is set forth in the. notice or warning of the meeting, the toAvn can no more ratify an act afterwards, than authorize it beforehand, except by' vote passed pursuant to . a previous notice specifying the object. Without the indispensable prerequisite of such a notice, those present at a town meeting have, no greater power to bind the town indirectly by ratification- or estoppel, than they have to bind it directly by .an original vote. Marsh v. Fulton County, 10 Wall. 676; Daviess County v. Dickinson, 117 U. S. 657; Norton v. Shelby County, 118 U. S. 425; Pratt v. Swanton, 15 Vt. 147; Lander v. Smithfield School District, 33 Maine, 239; American Tube Works v. Boston Machine Co., 139 Mass. 5.
By the statutes of Connecticut, it is. made the duty -of the selectmen to superintend the concerns of the town, to adjust and. settle all claims against it, and to draw orders on the treasurer for their payment, to keep a true and tegular account of all the.expenditures of the town, and to exhibit the same at the annual meeting; and it is.the duty of the treasurer to receive all the money belonging to the town for taxes, fines, forfeitures, debts or otherwise, and to make an annual-statement of the receipts of money into the treasury, and the expenditures, which shall be adjusted by the selectmen, and.laid .before the town at the annual meeting. Bev. Stats. 1866, tit. 7, § 45, ,67; 1821, tit. 103, § 8, tit. 105, § 20. But neither the selectmen • nor the treasurer have any general power to make, contracts, to borrow money, or to incur new debts, in behalf' of the town, except for particular objects having no relation to this case. Sharon v. Salisbury, 29 Conn. 113; Ladd v. Franklin, 37 Conn. 53; Goff v. Rehoboth, 12 Met. 26.
The reports made by the selectmen and the treasurer to theannuál meetings, in performance of the duties imposed upon those officers by statute, were not, unless expressly approved or acted on by the town at a meeting duly held upon sufficient warning,-evidence to charge the town with liability'for debts which those officers had no authority to contract. The only reports of the selectmen and treasurer upon which the town took any action were those of 1869. The acceptance. by the town of those reports might be a ratification of the debts and payments therein stated, but could have ho further effect. Burlington v. New Haven & Northampton Co., 26 Conn. 51; Benoit v. Conway, 10 Allen, 528; Dickinson v. Conway, 12 Allen, 487; Arlington v. Pierce, 122 Mass. 270; Bean v. Hyde Park, 143 Mass. 245. In Kinsley v. Norris, 60 N. H. 131, cited for the plaintiff, the town, under an appropriate article in the warrant, had voted not only to accept the report of. the doings of an agent, but also to give him additional powers.
There is nothing in the case at bar, which ténds to show that any of the promissory notes to individuals,- offered in evidence, or of the notes mentioned in-the annual reports of the-selectmen and .treasurer accepted by the town in -186,9, or in the vote of the town in 1880, were held by the plaintiff. ' The bill- of exceptions explicitly states that no evidence was offeree}' that the town in town meeting assembled knew that its treasurer kept his bank account with the plaintiff, or was borrowing of the plaintiff the money represented by the notes in suit, or by notes of which these were renewals; and also states that the plaintiff disclaimed any advantage by virtue of being the indorsee, instead of being the payee, of the notes in suit.
The bill of exceptions does state that it appeared' by the evidence that the plaintiff, from the beginning of its'ac-' count'with -Mills as treasurer, "supposed or thought that Mills was authorized to borrow money for the use of the town. and give its notes therefor." But it contains-nothing tending to show that the supposition was based upon, anything but false representations of.the treasurer, which would.not bind the town. Railroad Bank v. Lowell, 109 Mass. 214; Agawam Bank v. South Hadley, 128 Mass. 503. Ncr was there any evidence that the plaintiff, at the time of lending money to the treasurer, knew of any acts of the town or of the selectmen since the vote of 1868; and the vote of 1880, and the acts of the selectmen under it, took place .after the notes in -suit had been made and delivered to the plaintiff, and therefore coiild not have influenced it in taking them.
Upon the whole case, there was no proof of original authority, or of subsequent ratification, or of estoppel, to bind the defendant town; none of original authority, for want of any vote passed pursuant to due notice in the warning; none of ratification, for the same reason, as well as because it was not shown that the acts proved were done with intent to ratify the acts 6f the .treasurer in issuing the notes sued on, or with i knowledge- of all the.material.facts attending their issue1; none of estoppel, because there was no evidence of .any acts of the .town; which the plaintiff had a legal right to rely upon, or did in fact rely upon, -in tailing these notes. The jury having been instructed otherwise, the
. 'Judgment rrvust be reversed, and the case remanded to the Circuit Court with directions to set aside the verdict and '.to order a new trial.
S. C. 27 Am. Dec. 689.
S. C. 41 Am. Dec. 148.
S. C. 31 Am. Dec. 163.
S. C. 39 Am. Dec. 750.
S. C. 10 Am. Dec. 88.