Attorney General v. City of Methuen

• Court: Supreme Judicial Court of Massachusetts
• Citation: Attorney General v. City of Methuen, 236 Mass. 564 (Mass. 1921)
• Decision Date: 04 January 1921
• Parties: ATTORNEY GENERAL v. CITY OF METHUEN.

236 Mass. 564

ATTORNEY GENERAL v. CITY OF METHUEN.

Supreme Judicial Court of Massachusetts, Essex.

January 4, 1921

September 17, 1920.

Present: RUGG, C.

J., DE COURCY CROSBY, CARROLL, & JENNEY, JJ.

Quo Warranto. Attorney General. Municipal Corporations, Validity of charter. Constitutional Law, Incorporation of town as city. General Court. Jurisdiction. Practice, Civil, Parties. 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.

In a proceeding of the character above described in which it is alleged that a statute incorporating a town as a city was invalid because contrary to art. 2 of the Amendments to the Constitution, the municipality nominally and in fact exercising the franchises and prerogatives alleged to have been usurped may be made the party defendant.

The General Court under art. 2 of the Amendments to the Constitution has no jurisdiction to constitute a city government in a town unless and until its action to that end is sought by the inhabitants of the town who have signified their consent to such application being made by vote at a meeting of the town called under a written warrant, setting out in fairly intelligible language the subject or subjects to be acted upon by the voters and signed by the selectmen or, in the event of their unreasonable refusal to sign, by a justice of the peace, and served by the constable or other designated person.

Subsequent approval or ratification by a town, at a meeting "duly warned and holden," of action of the General Court purporting to constitute it a city without the making of the precedent application in accordance with the request or consent of the voters required by art. 2 of the

Amendments to the Constitution, will not validate such action.

At an annual town meeting of the inhabitants of Methuen, the warrant for which contained no notice that the subject of a change in the form of town government would be considered, a committee was appointed to investigate the advisability of changing the town's form of government. At the next annual meeting, under an article in the warrant, "to hear reports of committees and to act thereon," that committee reported, recommending that an application be made to the Legislature for a limited town meeting form of

government. Such an application was made and Spec.

St. 1916, c.

116, was enacted and was duly accepted by the town. Held, that, in such proceedings the requirements of art. 2 of the Amendments to the

Constitution were not fulfilled, so that a contention to the effect that the form of town government was so changed that a further change by the enactment of Spec. St. 1917, c. 289, without observance of the requirements of art. 2 of the Amendments to the Constitution, was valid, had no relevancy.

A vote of a public meeting in the town hall of Methuen, called by a published notice signed by the chairman and the clerk of the joint committee on cities of the Legislature and addressed to persons interested in a bill then pending to institute a city government in the town, which was favorable to the enactment of the bill, was not an application for such action to the General Court by a majority of the inhabitants of the town present and voting "at a meeting duly warned and holden for that purpose" as required by art. 2 of the Amendments to the Constitution, it not appearing that the meeting was called as a town meeting, that any town officer functioned at the meeting, that a check list of voters was used or that records were kept by the town clerk.

While the principles, that no laches can be imputed to the government and against it no time runs so as to bar its rights, and that estoppel does not apply ordinarily against the exercise of a public right, the interests of the Commonwealth usually being held not to be prejudiced by the failure of public officers to do their duty, apply to quo warranto proceedings instituted by the Attorney General on behalf of the

Commonwealth, the granting of relief in such proceedings, even when sought at the instance of the Attorney General in behalf of the public is not a matter of absolute right but is a subject for the exercise of sound judicial discretion.

In an information in the nature of a quo warranto, it was alleged that the proceeding was brought by the Attorney General "in behalf of the

Commonwealth and at the relation of" an individual citizen and the prayer was in the form, "Wherefore, the Attorney General upon relation of" the citizen "as aforesaid, prays ." The informant's brief before this court was signed by the Attorney General and by one of his assistants and also by counsel for the relator. The only oral argument in behalf of the informant in this court was made by counsel for the relator. Held, that

(1) The permission given to the counsel for the relator to argue in support of the Attorney General's information must not be taken as a precedent;

(2) The validity of a city charter cannot he assailed in this form of proceeding by one who has only the standing of a private citizen;

(3) An information of this nature must be presented by and on behalf of the Commonwealth and by and under the immediate supervision of the

Attorney General and in that way alone; (4) If the name of the relator be rejected as surplusage, enough remained in the record to show that the information was filed by the

Attorney General in behalf of the Commonwealth. Where, more than three years and two months after the approval by the

Governor of Spec. St. 1917, c. 289, purporting to constitute a city government in the town of Methuen, and more than two years and five months after the inauguration of a city government upon the supposed authority of the statute, the Attorney

General, whose attention then for the first time was called to the matter by a private citizen of Methuen, filed an information in the nature of a quo warranto based upon allegations that the statute was invalid because the requirements of art. 2 of the Amendments to the

Constitution were not observed, this court, while determining that the statute was invalid, held that, in the circumstances, granting the relief sought would not be a discreet exercise of judicial power nor in conformity to the general public interest.

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" and filed in the Supreme Judicial Court for the county of Essex on July 8, 1920, against the "City of Methuen," praying for "the advice of this court in the premises and for proper process to be issued to command the said municipal corporation of Methuen to answer by what warrant it claims to have, use and enjoy the corporate powers, privileges and franchises aforesaid, and for such other relief in the premises as justice may require."

The facts were agreed upon and were substantially as follows: Previous to the enactment of Spec. St. 1916, c. 116, Methuen was a town. That statute provided for precinct voting and a limited town meeting in the town and became effectual upon its acceptance by the town at a special election on July 29, 1916. In 1915, Methuen by the State census had more than fifteen thousand inhabitants and at all times since has had more than twelve thousand inhabitants.

On January 29, 1917, William L. Stedman, Samuel Rushton and David A Woodbury, who then constituted the board of selectmen of Methuen, filed with the General Court a petition, signed by them under the title "Board of Selectmen" and reading: "The undersigned, citizens of Massachusetts, respectively petition for the incorporation of the town of Methuen as a city under such charter or plan of government as the voters of said town may by their votes prefer." No town meeting was ever "duly warned and holden" previous to such application for the purpose of voting thereon and no inhabitants of the town held any meeting in the town, called or warned in accordance with the provisions of St. 1913, c. 835, Part V, Section 394, and amendments thereto for the purpose of considering the question of applying for a city charter for the town, and no meeting of the inhabitants of the town was ever called or warned in accordance with the by-laws or a vote of the town to consider questions of making application for a city charter for the town, and no vote was ever passed at any town meeting in the town authorizing any person or persons to apply for a city charter for the town, and the town of Methuen took no action in any manner or form at any town meeting duly warned by an article in the warrant relative to a city charter, "unless and except the following can be construed as a compliance with the provisions of the second amendment to the Constitution:"

On March 21, 1914 at a regular town meeting of the qualified inhabitants of the town of Methuen, a vote was passed providing for the appointment of a committee of nine qualified inhabitants of the town to investigate the advisability of changing the then existing form of town government of the town, and that such committee report their recommendations to a future meeting. At this meeting the warrant contained no article warning the inhabitants of any proposed change in the form of the town government or of the proposed appointment of the committee. The committee was appointed and acted in accordance with its instructions and submitted its report at the next annual town meeting held on March 6, 1915, under the article in the town warrant, "To hear reports of committees and to act thereon," and recommended an application to the Legislature for the limited...