
    Willard Parsons versus The Inhabitants of Goshen.
    A town has no authority to raise money to aid in the construction of a road which by law is to be made at the expense of the county, and consequently a tax laid by the town for the purpose of collecting the money is illegal and void.
    A vote of a town appointing a committee to appropriate money for constructing such a road, is an illegal and void act 3 and a contract for constructing it entered into by the committee in behalf of the town, will not be binding upon the town.
    Assumpsit to recover of the defendants the balance of an order dated at Goshen, January 16, 1829, and signed “ Timothy Lyman, Benjamin White, Jared Hawks junior, Committee of the said town,” directing Malachi James, as the collector and treasurer of the town for that year, to pay to the plaintiff $250,- “ it being due him out of the $> 500 raised by the town the last winter, towards making the road from Cummington line to near John Williams’s in said Goshen.”
    At the trial the following facts appeared in evidence. At a legal town meeting held on November 12, 1827, the defendants voted “ to raise $ 500 for the purpose of aiding and procuring the contemplated alteration of the road leading from Goshen to Cummington, provided that individuals in said town of Goshen raise that sum by subscription for the purpose aforesaid.” At a meeting on February 18, 1828, the town voted to raise $ 500 for the purpose of aiding in making the road recently laid out by the county commissioners, beginning at Cummington line, &c. At a meeting on March 3, 1828, upon an article in the warrant to see if the town will choose a committee to appropriate the $ 500 voted on February 18th, to the purpose for which it was raised, provided the town does not instruct their assessors not to assess it, the town voted not to give the assessors such instructions ; and thereupon théy voted to choose a committee for the purpose set forth in the article, and Lyman, White and Hawks, the persons who drew the order in question, were chosen as the committee.
    The commissioners of highways, in laying out the road, adopted the principle that they would not allow for making this road a greater sum than $ 650, although the probable expense would amount to a sum equal to or exceeding that sum together with $ 500 voted by the town and about the like sum raised by subscription by individuals ; and one of the commissioners stated, that it was understood that the contractors would have the benefit of all such allowances and subscriptions.
    The committee, under the authority given them by the town, agreed to allow to the plaintiff, of the sum voted by the town, $250 towards compensation for his services and expenses in making about half of the road. His services were performed under the direction of the committee, and he made the road according to his contract. The money received from the county by the allowance of the commissioners of highways, was wholly expended on the part of the road lying within the town of Cummington. The part for which the sum of $ 500 was voted by the defendants was within the limits of Goshen. The plaintiff was also to receive a share of the subscription money. After the services were completed, the committee gave the plaintiff the order before mentioned, in consideration of his services, and to indemnify him for the expenses incurred by him at their request.
    The assessors of Goshen laid a tax, in the usual form, for the $ 500 voted to be raised; and of this tax $197 were collected. Of this sum, $ 195-35 have been paid over, and a part thereof, viz. $ 126-89, was paid to the plaintiff in 1829 and 1830, and was duly indorsed upon the order before mentioned.
    On November 2, 1829, the town of Goshen voted to instruct their collector, James, not to proceed any further in the collection of the tax ; and the collector testified that the persons against whom he held the tax bills generally refused to pay, because the tax was illegal. He paid over all the money he had collected, except the small balance of $ 1-65, which he retained from a mistake in calculation.
    The road in question was a county road, located by the commissioners of highways under St. 1825, c. 171, and according to that statute, to be constructed at the expense of the county.
    The defendants objected to the plaintiff’s recovery, because the town of Goshen had no right to raise money for the con struction of a county road.
    
      
      Oct. 1st
    
    
      Sept. 26th
    
    If the plaintiff was entitled to recover, the defendants agreed to be defaulted ; if not, the plaintiff was to be nonsuit.
    
      Bates and Dewey, for the plaintiff.
    This action is brought upon a contract founded on a sufficient consideration, and unless the defendants show the contract to have been illegal, they may be compelled to perform it on their part. The question of the illegality of a tax, does not arise ; the action is for money due upon a contract, and the plaintiff is entitled to recover, even if the defendants could not legally raise the money by a tax. But the town, inasmuch as it would be bound to repair and maintain the road, had a legal interest in its construction. If made in a substantial manner at first, the repairs would be less expensive. So a town is entitled to notice previously to the location of a road, and it may lawfully procure and pay counsel, witnesses and surveyors, in order to oppose or obtain the location in a particular place. In the present instance, therefore', the vote to raise the $ 500 and the laying of the tax, were not illegal. In the cases .in which it has been held that a town has voted money illegally, the subject matter of the vote was entirely out of the jurisdiction of a town. They cited Nelson v. Milford, 7 Pick. 27.
    
      Billings and Clark, for the defendants,
    cited Stetson v. Kempton et al., 13 Mass. R. 272.
   Wilde J.

delivered the opinion of the Court. rfhe most important question in this case is settled, and upon principles which cannot be controverted, in the case of Stetson v. Kempton et al., 13 Mass. R. 272. Upon the law as laid down in that case it is very clear, that the vote of the defendant, town to raise a sum of money for the purpose of contributing to the expenses of making the road laid out by the commissioners of highways was unauthorized, and consequently that the tax assessed for the purpose of carrying it into effect was illegal and void. By the 4th section of the act of 1825, c. 171, the commissioners are required to cause all roads located by them to be constructed and finished to their acceptance in such manner as will best promote the public interest; and all expenses thus incurred are to be satisfied out of the treasury of the county. The town not being chargeable with any portion of these expenses, could not assume any liability therefor unless they were authorized so to do by the. legislature; and it is manifest that after the statute of 1825, they were not thus authorized. The vote of the town appointing a committee to contract for the making and finishing the road was a void act, under which the committee had no authority to make a valid contract in behalf of the town, and consequently were not authorized to draw the order declared on in payment of the plaintiff’s labor and services.

This limitation upon the power and authority of towns tc enter into contracts and stipulations is a wise and salutary provision of law, not only as it protects the rights and interests of the minority of the legal voters, but as it may not unfrequently prove beneficial to the interests of the majority, who may be hurried into rash and unprofitable speculations by some popular and delusive excitement, to the influence of which even wise and considerate men are sometimes liable.

As to the small balance which has been collected and not. paid over by the collector, we are of opinion that the plaintiff cannot recover, because it having been paid on an illegal assessment, it must be considered as received to the use of the person paying it; and an action lies in his favor to recover it back, to which action a recovery in this case would be no bar.

Plaintiff nonsuit. 
      
       See Anthony v. Adams, 1 Metc. 284; Spaulding v. Lowell, 23 Pick. 71 ; Willard v. Newburyport, 12 Pick. 22; Simmons v. Hanover, 23 Pick. 188; Allen v. Taunton, 19 Pick. 485; Bancroft v. Lynnfield, 18 Pick. 566; Keyes v. Westford, 17 Pick. 273; Hooper v. Emery, 2 Shepl. 375.
     