The opinion of the court was delivered by

The plaintiff’s right to recover depends mainly upon the question whether the money that he seeks to recover was expended by him as a highway surveyor of the district within which it was expended.

It appeared that prior to the March meeting in 1872, the town had been duly divided into highway districts as required by law, and at said meeting the town elected surveyors for each of said *393districts. Bates was elected for district No. 5, Horley for No. 6, and Turner for No. 7. Horley was present at the meeting and did not decline to act. Bates and Turner were not present, and were not notified by the clerk of their election. Bates and nor-ley afterwards- told the plaintiff, who was one of the selectmen, that they would not serve. Turner did not object to serving. No tax-bills were offered to any of them, and no steps taken to enforce the penalty for refusing to serve. Each stood in a position where he had the right to serve if he saw fit; aud for aught that appears, if the proper tax-bills had been offered, would have done so. The selectmen did not regard these offices as vacant and proceed under the statute to fill them; but proceeded to set a part of No. 5 to district No, 4, and then consolidated the remainder of No. 5 with No. 6 and No. 7, thus, in fact, making a new district, and appointed the plaintiff' (one of their number) the surveyor of such district. Had the selectmen, under the statute, authority to do this ? The statute makes it the duty of the selectmen to divide the several towns into a sufficient number of highway districts, with power from time to time to alter the same. It also makes it the duty of the town at its annual meeting to choose a highway surveyor for each .highway district. No authority is conferred upon the selectmen to appoint highway surveyors, except to fill such vacancies as may occur in the manner specified in the statute after the town has exercised its power of appointment. All this _ indicates very clearly the intent of the legislature that the selectmen should so exercise their duty of dividing the town into districts that the town could exercise its duty of appointing the highway surveyors. Any other view of the statute would enable the selectmen in every town, after the annual town meeting, by redistricting the town, to usurp the whole power of appointing the highway surveyors therein. This w*e think would' be going quite too far.

The principle involved in this case, comes clearly within the doctrine established in the case of Lamphire v. Windsor, 27 Vt. 544. In that case, the selectmen took parts of three old districts and formed thereof a new district, and appointed Lamphire the surveyor of it. The court held that in so doing the selectmen *394exceeded their power, and that Lamphire derived no authority therefrom as a highway surveyor. It can make no difference whether the action of the selectmen increases or diminishes the number of districts in the town. The difficulty consists in their making an entire new district and appointing a highway surveyor thereof.

In this case it is conceded that there was no vacancy in the office of surveyor in one of the old districts absorbed in the new. Whether there was in the other two, is at least questionable. Cummings v. Clark, 15 Vt. 653. But if there was, that would confer on the selectmen no such authority as they attempted to exercise. They only had authority to fill such vacancies. The result is, the plaintiff cannot recover upon the ground that he was a highway surveyor.

But it is said he was one of the selectmen when he made the expenditure. He did not act, or profess to act, as a selectman, but ás a surveyor; and what he did is embraced within the duties of a surveyor, and not of the selectmen. We think he cannot stand upon this ground.

It is further said that the other, selectmen ratified his acts by paying him a part of what he expended. If the selectmen could not bind the town by his appointment, it is difficult to see how they could subsequently bind the town by recognizing the acts done by him under such appointment.

Judgment reversed, and judgment for defendant to recover its costs.