Wheelock v. City of Lowell
| Decision Date | 23 July 1907 |
| Citation | 81 N.E. 977,196 Mass. 220 |
| Parties | WHEELOCK et al. v. CITY OF LOWELL et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles Cowley, for plaintiffs.
J Gilbert Hill, for respondents.
This is a petition under Rev. Laws, c. 25, § 100, praying for an injunction to restrain the payment of money for the erection of a public hall in Lowell. Three questions are raised.
1. The petitioners contend that, under the circumstances disclosed the purchase of land and construction of a hall upon it is not a public purpose. The bill alleges, and the effect of the findings by the single justice is, that the defendant city already possesses a city hall with sufficient accommodations for its mayor, board of aldermen, common council, school committee and other public boards and officers. While Huntington Hall, which has been burned, and to replace which it is proposed to erect the hall now under discussion, was often rented for the usual purposes of a public hall, it was frequently used for political rallies and conventions and for public and private meetings of citizens.
Municipalities are creatures of the Legislature, with powers as to the raising and expending of money strictly limited to the public purposes for which they are created. They have no power to expend money, which can only come into their treasuries through taxation, for any other than purely public uses. In its last analysis any other principle is a taking of private property, through the medium of a public official, for a private use, which is contrary to fundamental conceptions of good government.
The erection of town houses in which the inhabitants may assemble has been uniformly held to be a public purpose, for which towns might raise money under the general phrase of the statute which empowers appropriations for 'other necessary charges.' This expression has been continuously in our statutes since 1692. St. Nov. 16, 1692 (St. 1692-1714, p. 66, c. 28), § 6; St. 1784-85, p. 615, c. 75, § 7; Rev. St. 1836, c. 15, § 12; Gen. St. 1860, c. 18 § 10; Pub. St. 1882, c. 27, § 10; Rev. Laws, c. 25, § 15; Stetson v. Kempton, 13 Mass. 272-279, 7 Am. Dec. 145; Spaulding v. Lowell, 23 Pick. 71-79; French v. Quincy, 3 Allen, 9; George v. School District, 6 Metc. 497; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Worden v. New Bedford, 131 Mass. 23, 41 Am. Rep. 185; Kingman v. Brockton, 153 Mass. 255, 26 N.E. 998, 11 L. R. A. 123; Com. v. Wilder, 127 Mass. 1-3; Hadsell v. Hancock, 3 Gray, 526; Friend v. Gilbert, 108 Mass. 408; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Little v. Holyoke, 177 Mass. 114, 58 N.E. 170, 52 L. R. A. 417. Since 1869 there has been superadded the right of eminent domain in order to procure a lot for a town or city hall. St. 1868-69, p. 704, c. 411, § 1; Rev. Laws, c. 25, § 45; Id. c. 26, § 2; Id. c. 8, § 5, cl. 23. The fact that, in comparatively rare instances, special statutory authority has been obtained, does not argue against the existence of the general power, but is to be accounted for as done through excess of caution or as conferring some additional power not derived from the general law. Shea v. Milford, 145 Mass. 528, 14 N.E. 764; Spaulding v. Lowell, 23 Pick. 71-79; Kelly v. Boston, 186 Mass. 165, 71 N.E. 299, 66 L. R. A. 429. See St. 1884, p. 313, c. 309, § 15.
The petitioners do not raise the question as to the right of a city to build a building for the use of municipal boards and officers, but they assert in substance that the proposed hall is not needed for any municipal officer or board and is intended to be used as a place for holding theatrical exhibitions, dances, and other amusements. The burden of proving these allegations is upon the petitioners. It the dominating motive for the erection of the hall is a strictly public use, then the expenditure for it is legal, although incidentally it may be devoted occasionally to uses which are not public. If, however, the project of the defendant city is merely colorable, masking under the pretext of a public purpose, a general design to enter into the private business of maintaining a public hall for gain, or devoting it mainly to any other than its public use as a gathering place for citizens generally, such an attempt would be a perversion of power and a nullity and no public funds could be appropriated for it. Spaulding v. Lowell, 23 Pick. 71-80; Opinion of Justices, 182 Mass. 605, 66 N.E. 25. The reported facts show a substantial use of Huntington Hall for political rallies, conventions and other public meetings of citizens, although from time to time it has been rented for purposes of amusements and instruction. That the building has been also let for private uses, when not required by the public needs, does not affect the general legal purpose. French v. Quincy, 3 Allen, 9. The fact, too, that the old hall was occasionally permitted to be used free of charge for private purposes, although clearly illegal, appears to have been an incidental and not an essential element in its management. Means for the correction of this wrong, if attempted with the new hall, are easily accessible. There has been on the whole a failure to show by evidence that the main purpose to which the proposed hall is to be put is private gain and not public gatherings of citizens. The broad question presented, therefore, is whether cities have the power to raise and appropriate money for building such a hall.
Article 19, pt. 1, of the Massachusetts Constitution declares that 'the people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions or remonstrances redress of the wrongs done them and of the grievances they suffer.' Article 1 of the amendments to the Constitution of the United States prohibits Congress from passing any law 'abridging the freedom of speech * * * or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.' Respecting this article in the Declaration of Rights it was said by Chief Justice Shaw in Com. v. Porter, 1 Gray, at page 478: See, also, Stone v. Charlestown, 114 Mass. 214-222; Com. v. Abrahams, 156 Mass. 57-60, 30 N.E. 79.
It has been the policy of the Legislature to provide in the enactment of city charters by a special section for the exercise of this constitutional right of assembly and to require designated city officials to call such meetings under proper circumstances. Beverly: St. 1894, p. 125, c. 161, § 9. Boston: St. 1820-22, p. 749, c. 110, § 25; St. 1854-55, p 378, c. 448, § 60; St. 1882, p. 154, c. 204. Brockton: St. 1880-81, p. 515, c. 192, § 32. Cambridge: St. 1891, p. 931, c. 364, § 5; St. 1846-48, p. 71, c. 109, § 12. Charlestown: St. 1846-48, p. 329, c. 29, § 18. Chelsea: St. 1894, p. 343, c. 325, § 9; St. 1856-57, p. 414, c. 18, § 20. Chicopee: St. 1890, p. 161, c. 189, § 8; St. 1897, p. 193, c. 239, § 8. Everett: St. 1892, p. 359, c. 355, § 9. Fall River: St. 1854-55, p. 180, c. 257, § 20; St. 1868-69, p. 580, c. 545, § 50; St. 1872-73, p. 667, c. 245, § 50; St. 1885, p. 711, c. 269, § 23; St. 1878-79, p. 174, c. 239, § 4; St. 1899, p. 350, c. 371, § 32; St. 1902, p. 314, c. 393, § 41. Fitchburg: St. 1872-73, p. 73, c. 81, § 27. Gloucester: St. 1872-73, p. 679, c. 246, § 28. See St. 1900, p. 243, c. 323, § 7; St. 1898, p. 235, c. 302, § 7; St. 1896, p. 420, c. 441, § 88; St. 1870-71, p. 713, c. 358, § 29. Haverhill: St. 1868-69, p. 446, c. 61, § 28. See St. 1866-67, p. 645, c. 251, § 28; St. 1901, p. 364, c. 438, § 8. Holyoke: St. 1872-73, p. 583, c. 154, § 23; St. 1896, p. 396, c. 438, § 8. Lawrence: St. 1852-53, p. 399, c. 70, § 18; St. 1888, p. 506, c. 439, § 5. See St. 1895, p. 357, c. 326, § 10. Lowell; St. 1874-75, p. 763, c. 173, § 34; St. 1834-36, p. 807, c. 128, § 23. Lynn: St. 1849-51, p. 390, c. 184, § 19; St. 1849-51, p. 57, c. 89, § 18; St. 1893, p. 1076, c. 378, § 8; St. 1894, p. 225, c. 247, § 9; St. 1900, p. 293, c. 367, § 9. Malden: St. 1880-81, p. 477, c. 169, § 31. Marlborough: St. 1890, p. 273, c. 320, § 8. See St. 1896, p. 314, c. 379, § 9. Medford: St. 1892, p. 296, c. 324, § 9; St. 1903, p. 305, c. 345, § 7; St. 1906, p. 212, c. 252, § 1. Melrose: St. 1899, p. 113, c. 162,§ 8. New Bedford: St. 1846-48, p. 353, c. 60, § 19; St. 1868-69, p. 174, c. 228, § 25; St. 1874-75, p. 711, c. 140, § 51. Newburyport: St. 1849-51, p. 795, c. 296, § 20. Newton: St. 1897, p. 276, c. 283, § 39; St. 1873, p. 840, c. 326,§ 28. North Adams: St. 1895, p. 136, c. 148, § 8. Northampton: St. 1883, p. 552, c. 250, § 37. See St. 1900, p. 368, c. 427, § 8. Pittsfield: St. 1889, p. 1095, c. 411, § 8; St. 1895, p. 312, c. 302, § 8; St. 1875, p. 744, c. 166, § 28; St. 1904, p. 343, c. 389, § 6. Quincy: St. 1888, p. 283, c. 347, § 8. Roxbury: St. 1846-48, p. 58, c. 95, § 19. Salem: St. 1834-36, p. 695, c. 42 § 17. Somerville: St. 1870-71, p. 555, c. 182, § 26; St. 1899, p. 202, c. 240, § 8. Springfield: St. 1852, p. 61, c. 94, § 20. Taunton: St. 1882, p. 171, c. 211, § 21; St. 1864-65, p. 142, c. 209, § 18. Waltham: St. 1893, p. 997, c. 361, § 9. Westfield: St. 1906, p. 397, c. 409, § 11. Wo...
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