Blood v. Beal

• Decision Date: 01 March 1905
• Citation: 60 A. 427,100 Me. 30
• Parties: BLOOD et al. v. BEAL, Mayor, et al.
• Court: Maine Supreme Court

60 A. 427

100 Me. 30

BLOOD et al.

v. BEAL, Mayor, et al.

Supreme Judicial Court of Maine.

March 1, 1905.

Report from Supreme Judicial Court, Penobscot County.

Bill in equity by Horatio W. Blood and others, taxable inhabitants of the city of Bangor, under the provisions of Rev. St. c. 79, § 6, par. 11, asking that F. O. Beal, as mayor, and H. O. Pierce, as treasurer, be restrained from paying out any money, and that a special committee, appointed for the purpose, be restrained from making a contract, for the purchase of two steel spans for the Bangor and Brewer Bridge, under the authority of a certain order passed by the city common council. At the hearing before the justice of the first instance, a temporary injunction was issued, and the case was reported to the law court to render such judgment as the legal rights of the parties require. Decree rendered.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

Louis C. Stearns and T. D. Bailey, for plaintiffs. E. C. Ryder and H. L. Fairbanks, for defendants.

SPEAR, J. This is a bill in equity, brought by 14 taxable inhabitants of the city of Bangor, under chapter 79, § 6, Rev. St., asking that F. O. Beal, as mayor, and H. O. Pierce, as treasurer, be restrained from paying out any money, and that a special committee appointed for the purpose be restrained from making a contract, for the purchase of two steel spans for the Bangor and Brewer Bridge, under the authority of the following order passed by the city council, viz.:

"In common council, October 14, 1904. Order for purchase of bridge spans taken from the table by yes and nay vote. Order for appointment of committee to consist of street engineers, one alderman and the president of common council, to contract with the lowest bidder for the two spans as advertised for the Bangor and Brewer Bridge, so called, as soon as a contract is signed with the Public Works Company for crossing. Passed by yes and nay vote."

The plaintiffs base their claim for an injunction upon two grounds: (1) Because the common council, in passing the order, violated the rules adopted by it for its procedure when in session; and (2) because the consummation of a contract for the purchase of the two steel spans by the committee appointed would create an indebtedness which, with its previous debts or liabilities, would place the city of Bangor beyond its debt limit under article 22 of the Amended Constitution of the state.

The position of the defendants is (1) that, the purpose of the contract being a proper one, and one which the city has a legal right to make, the court has no equity jurisdiction to enjoin the proceedings; (2) that, if there were any irregularities in the passage of the order, it was simply a failure on the part of the lower board to observe its own rules, and that the result of the vote was the same as it would have been had there been a formal motion to reconsider; and (3) that the city has the constitutional right to enter into the contract contemplated by the order.

The first objection raised by the defendants is settled in favor of the petitioners in Reynolds v. Waterville, 92 Me. 292, 42 Atl. 553.

This was a bill in equity, brought by the plaintiffs, being 12 taxable inhabitants of the city of Waterville, against the city, the city hall commission, created by Special Laws of 1897, and M. C. Foster & Son, who were alleged to have contracted with the city hall commission for the erection of a city hall building in the city of Waterville.

The whole office of this commission was to make the contract in avoidance of the city debt limit for the erection of the city hall for the present use of, and ultimate payment by, the city. Such contract was consummated with Ml O. Foster & Son, and of this transaction Chief Justice Peters says: "These are all very commendable provisions, but only go to show the true relations which the city was to hold towards this city property, and indicating that the city was really to build the new hall as its own property. And does not the very mischief here arise which the constitutional amendment was designed to prevent, the city thus getting their hall in the present, and having thirty years of continuous annual taxations with which to pay for it?" But the Reynolds Case only indirectly involved a contract, which, as the court found, was calculated to load the city beyond its constitutional debt limit, while the case at bar not indirectly, but directly, involves such a contract. While the decisions promulgated before the adoption of the present constitutional amendment in 1877, and before the conferring of full equity jurisdiction upon the court in 1874, hold that an injunction will lie only to restrain a city or town from raising or paying out money for a purpose not authorized by law under the statute (Johnson v. Thorndike, 56 Me. 32), yet the court, not only under the decision in the Reynolds Case, but by virtue of its enlarged equity powers, is fully invested with jurisdiction to enable it to prevent a manifest violation of the constitutional provision referred to. In the Johnson Case the statute gave special jurisdiction to prevent a violation of the statute. In the case at bar the statute giving full equity jurisdiction undoubtedly confers upon the court sufficient authority to restrain a violation of the fundamental law. Unless equity can intervene, the amendment can be transgressed with impunity. We know of no other process by which the constitutional inhibition could be enforced against a liability created for a legal purpose.

But, unlike the statute which applies only to a liability created for a "purpose not authorized by law," the constitutional amendment applies with equal force against a liability whether created for a legal or illegal purpose. It makes no distinction whatever in this respect The court is clothed with ample jurisdiction to prevent it whether the debt or liability which is calculated to violate the constitutional prohibition is created for a legal or illegal purpose. The purpose for which the debt is incurred or contemplated is immaterial if it exceeds the 5 per cent. limitation specified in the amendment. Having jurisdiction, we now approach the consideration of the first ground, upon which the plaintiffs assert they are entitled to an injunction—that the parliamentary irregularities involved in the final passage of the order are fatal to its legality. When considered in connection with the provisions of section 7 of the rules and orders of the city council, this contention must prevail. The mere omission of the common council to reconsider and take the order from the table in accordance with the usual parliamentary rule of itself was not the fatal point in the proceedings.

The record shows that the common council nonconcurred with the board of aldermen in passing the order authorizing the contract for the purchase of the bridge spans, and referred it to the next city council. The order was then returned to the board of aldermen, who insisted upon their former action, and asked for a committee of conference. The common council, without any action by way of reconsidering or revoking the reference to the next city council, then concurred in the action of the aldermen, and appointed conferees. A week later the report of the conferees that they were unable to agree was accepted in concurrence, and the appointment of new conferees refused by the common council. Here the whole matter rested several months until October 14th, when the order was taken from the table by a yea and nay vote, 10 voting yea and 7 nay.

The formal defect in the parliamentary procedure would not necessarily be insur mountable if the action of the city council had complied with the requirements of section 7 of the rules and orders above referred to.

Section 7 is as follows: "In the present and every future financial year, after the resolve making the annual appropriations shall have passed, no subsequent expenditure shall be authorized for any object unless provision for the same shall be made by a specific transfer from some of the appropriations contained in such annual resolve, or by expressly creating a city debt, in the latter of which case, the order shall not be passed unless two-thirds of the whole number of each branch of the city council vote in the affirmative, by a vote taken by yeas and nays."

No language can be plainer than the above. Laying aside all parliamentary informalities, and assuming that the city council undertook to do in a purely parliamentary way just what ...