Attorney Gen. ex rel. Mann v. City of Methuen

• Decision Date: 07 January 1921
• Citation: 129 N.E. 662,236 Mass. 564
• Parties: ATTORNEY GENERAL ex rel. MANN v. CITY OF METHUEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 564

129 N.E. 662

ATTORNEY GENERAL ex rel. MANN

v.CITY OF METHUEN.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 7, 1921.

Case Reserved from Supreme Judicial Court.

Information in the nature of quo warranto by the Attorney General on the relation of Charles W. Mann, against the City of Methuen. On reservation by a single Justice of the Supreme Judicial Court for the determination of the full court. Information dismissed.J. Weston Allen, Atty. Gen., Arthur E. Seagrave, Asst. Atty. Gen., and Frank W. Morrison, of Whitinsville, for relator and petitioner.

Charles A. Clifford and John P. Kane, both of Lawrence, for respondent.

RUGG, C. J.

This is an information in the nature of a quo warranto brought by the Attorney General ‘in behalf of the commonwealth and at the relation of Charles W. Mann’ against the city of Methuen, seeking to have the city charter of Methuen declared void as having been enacted contrary to the requirements of amendment 2 of the Constitution, and to have a judgment of ouster accordingly.

The question whether the Attorney General has power by virtue of his office to bring an information in the nature of a quo warranto to test the validity of a city charter never before has arisen in this commonwealth. It is a question which would be likely to arise infrequently. There seems to be no sound reason why the Attorney General should not have the same right to institute proceedings respecting the usurpation of the franchises and prerogatives of a municipality or other governmental subdivision as he possesses respecting like acts of a private or quasi public corporation. The evil is likely to be quite as great in one case as in the other. The public interest in its suppression is as acute in the one instance as in the other. That proceedings of this nature be instituted by an officer of the state acting under the responsibility of his oath and with the impartiality naturally flowing from his position, rather than through the heat of partizanship or the ungenerous impulses of personal antagonism apart from a personal right of interest, is as desirable in the one case as in the other. That the Attorney General has such power follows from the discussion in Attorney General v. New York, New Haven & Hartford Railroad, 197 Mass. 194, 83 N. E. 408. See also Attorney General v. Apportionment Commissioners, 224 Mass. 598, 610-611, 113 N. E. 581.

An information in the nature of a quo warranto may be brought by the Attorney General in behalf of the commonwealth to test the question whether the franchises and prerogatives of a municipal corporation have been usurped. The municipality nominally and in fact exercising such franchises and prerogatives may be made the party defendant. That proposition rests upon sound principle. It is supported by the great weight of adjudications in other jurisdictions. State v. Bradford, 32 Vt. 50;Nelson v. Consolidated Independent School District, 181 Iowa, 424, 164 N. W. 874;People v. Kingsland, 70 N. Y. 518;People v. Powell, 274 Ill. 222, 227, 113 N. E. 614;Evens v. Anderson, 132 Minn. 59, 62, 155 N. W. 1040;Earlboro v. Howard, 47 Okl. 455, 149 Pac. 136;State v. City of Birmingham, 160 Ala. 196, 48 South. 843;State v. Clark, 75 Neb. 620, 106 N. W. 971;Brennan v. Bradshaw, 53 Tex. 330, 37 Am. Rep. 758;State v. Osburn, 24 Nev. 187, 51 Pac. 837; Dakota v. Armstrong, 6 Dak. 226, 50 N. W. 832; Askew v. Nanning, 38 U. C. Q. B. 345, 361; Kansas v. Ford County, 12 Kan. 441; Henry v. Steele, 28 Ark. 455; Bateman v. Florida Commercial Co., 26 Fla. 423, 8 South. 51;Velasquez v. Zimmerman, 30 Colo. 355, 70 Pac. 419;State v. Atlantic Highlands, 50 N. J. Law, 457, 14 Atl. 560;State v. Woods, 233 Mo. 357, 135 S. W. 932;State v. Leischer, 117 Wis. 475, 94 N. W. 299; Rex v. Corporation of Carmarthen, 2 Burrow, 869; The King v. Ogden, 10 B. & Cres. 230. There is nothing in Attorney General v. Sullivan, 163 Mass. 446, 40 N. E. 843,28 L. R. A. 455, at variance with this conclusion. See Attorney General v. Salem, 103 Mass. 138.

It becomes unnecessary to consider whether the circumstances are such that the relator would be barred of relief for any reason. Manifestly there is nothing on this record which prevents the Attorney General from asking the court to consider his contentions. Commonwealth v. Allen, 128 Mass. 308.

The constitutionality of Sp. St. 1917, c. 289, is assailed. The ground upon which that contention rests is that that statute was not enacted as required by the Constitution and hence that the exercise of the franchises of a city by the defendant is a usurpation. That statute in form provides that the inhabitants of the town of Methuen shall continue and become a body corporate and politic under the name of the city of Methuen, enjoying all the rights and powers and subject to all the duties and obligations of cities as municipal corporations. That act was submitted to the legal voters of the town ‘for their acceptance or rejection’ and was ‘accepted’ by them by ballot as provided by section 54 of chapter 289. Officers of the city were elected in December, 1917, and assumed the control of the municipal affairs of Methuen on the first Monday of January, 1918. Since that time its government has been in accordance with chapter 289.

The only authority conferred by the Constitution to establish a city is found in article 2 of the amendments. It is in these words:

‘The general court shall have full power and authority to erect and constitute municipal or city governments, in any corporate town or towns in this commonwealth, and to grant to the inhabitants thereof such powers, privileges, and immunities, not repugnant to the Constitution, as the general court shall deem necessary or expedient for the regulation and government thereof, and to prescribe the manner of calling and holding public meetings of the inhabitants, in wards or otherwise, for the election of officers under the Constitution, and the manner of returning the votes given at such meetings. Provided, that no such government shall be erected or constituted in any town not containing twelve thousand inhabitants, nor unless it be with the consent, and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose. And provided, also, that all by-laws, made by such municipal or city government, shall be subject, at all times, to be annulled by the general court.’

The precise points urged against the validity of the statute are (1) that there was no application for the enactment of a statute constituting the town of Methuen to be a city by a majority of the inhabitants of that town present and voting thereon pursuant to a vote at a meeting duly warned and holden for that purpose; and (2) hence that Sp. St. 1917, c. 289, is void as a city charter. These exact points have not hitherto been presented for determination. Their decision depends upon the meaning of article 2 of the amendments to the Constitution. That article was proposed and adopted because the Constitution as it stood theretofore required a town form of government ‘not adapted to the condition of a populous town,’ and because it was deemed necessary ‘to authorize such an organization as is adapted to the condition of a numerous people.’ Remarks of Lemuel Shaw, Journal of Massachusetts Convention, 1820-1821, p. 98.

There are a few decisions respecting article 2 of the amendments to the Constitution. It was said by Chief Justice Gray in Hill v. Boston, 122 Mass. 344, at page 357,23 Am. Rep. 332, 344:

‘The Constitution does not indeed allow a city to be established in the first instance, so as to transfer the immediate control of local affairs from the whole body of citizens in town meeting to a delegated city council, except with the consent and on the application of a majority of the inhabitants.’ Warren v. Mayor and Aldermen of Charlestown, 2 Gray (68 Mass.) 84, 101.

In Larcom v. Olin, 160 Mass. 102, 35 N. E. 113, St. 1892, c. 377, which established a model form of city charter and provided for its adoption by vote of a town possessing other constitutional requisites for becoming a city without further action by the general court was held to be contrary to the terms of article 2 of the amendments. In the course of the opinion, written by Chief Justice Field, it was said (160 Mass. at page 108, 35 N. E. 115):

‘The proviso was inserted in the proposed amendment that the voters in small towns might continue to hold their ancient privileges of managing their own town affairs. The limit was fixed at twelve thousand inhabitants, and it was also provided that, although the town contained twelve thousand inhabitants, the general court should not constitute it a city government except ‘with the consent and on the application of a majority of the inhabitants,’ etc. The practical construction put upon the proviso has been that the town must first make an application to the general court by a vote of its inhabitants, and, if an act of incorporation is passed pursuant to the application, that the act must be submitted for acceptance to the inhabitants. Whether two meetings and two votes are necessary or not, certainly there must be an application and a consent manifested by a vote pursuant to the proviso. The general court cannot constitute a small town a city in any manner, and it can constitute a town containing twelve thousand inhabitants or more a city only upon its own application, and the general court is not required to constitute such a town a city if it makes the application, but is only authorized to do so if it sees fit.'

The substance of that decision was stated in Cunningham v. Mayor of Cambridge, 222 Mass. 574, at page 576, 111 N. E. 409, 410 (Ann. Cas. 1917C, 1100), in these words:

‘In brief, the ground was that article 2 of the amendments to the Constitution plainly contemplated that the question, whether any municipality...